Opinion · Court of Appeals for the Sixth Circuit

Naivette, Inc. v. Philad Co.

Naivette, Inc. v. Philad Co., 54 F.2d 624 (6th Cir. 1931)

Type
Opinion
Court
Court of Appeals for the Sixth Circuit
Jurisdiction
Federal
Date
1931-12-18
Topic
finance

PER CURIAM. The District Court granted a motion to dismiss defendant’s counterclaim, basing its decision upon the ground only that the cause of action therein alleged was not germane to the cause of action set forth in plaintiff’s bill of complaint. This basis of decision was, we think, founded upon a misconception of the proper scope and effect of Equity Rule 30 (28 USCA § 723). See American Mills Co. v. American Surety Co., 260 U.

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NAIVETTE, INC. v. PHILAD CO.,54 F.2d 624(6th Cir. 1931)
NAIVETTE, Inc., v. PHILAD CO. et al.
No. 5794.
Circuit Court of Appeals, Sixth Circuit.
December 18, 1931.
Appeal from the United States District Court for the Eastern Division of the Northern District of Ohio; Paul Jones, Judge.

Patent infringement suit by the Philad Company and another against Naivette, Inc. A motion to dismiss defendant's counterclaim was granted, and defendant appeals.

Reversed and remanded.

See, also (C.C.A.)54 F.2d 623.
Marston Allen, of Cincinnati, Ohio (Pennie, Davis, Marvin Edmonds, of New York City, Kwis, Hudson Kent, of Cleveland, Ohio, and W. Brown Morton and E.H. Merchant, both of New York City, on the brief), for appellant.

Morris Kirschstein, of New York City (Harvey R. Hawgood, Hawgood Van Horn, and T. Paul Titus, all of Cleveland, Ohio, on the brief), for appellees.
Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
PER CURIAM.
The District Court granted a motion to dismiss defendant's counterclaim, basing its decision upon the ground only that the cause of action therein alleged was not germane to the cause of action set forth in plaintiff's bill of complaint. This basis of decision was, we think, founded upon a misconception of the proper scope and effect of Equity Rule 30 (28 USCA § 723). See American Mills Co. v. American Surety Co.,260 U.S. 360,43 S. Ct. 149,67 L. Ed. 306. Compare, also, Moore v. New York Cotton Exchange,270 U.S. 593,609,46 S. Ct. 367,70 L. Ed. 750, 45 A.L.R. 1370; Le Sueur v. Manufacturers' Finance Co., 285 F. 490, 495 (C.C.A. 6); Wire Wheel Corp. v. Budd Wheel Co., 288 F. 308 (C.C.A. 4); Krentler-Arnold Hinge Last Co. v. Leman,13 F.2d 796(C.C.A. 1).

Since the other chief ground asserted by plaintiff for dismissal of the counterclaim, that it alleged a cause of action at law, and not in equity, may, even if well founded, be fully met by amendment, and since we think that opportunity for such amendment should be allowed, the true facts permitting, the judgment of the court below is reversed, and the cause is remanded for further proceedings consistent with this opinion.Page 632