AB Dick Co. v. Marr, 52
| Decision Date | 26 May 1952 |
| Docket Number | No. 52,Docket 22096.,52 |
| Parties | A. B. DICK CO. v. MARR. |
| Court | U.S. Court of Appeals — Second Circuit |
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Charles A. Horsky, Washington, D. C. (Robert W. Byerly, Bruce Bromley, New York City, of counsel), for appellee.
Edward D. Bolton, New York City, M. Neil Andrews, Atlanta, Ga., for appellant.
Before PARKER, Chief Judge, and WOODBURY and RUSSELL, Circuit Judges, by special designation of the Chief Justice.
This is an appeal from a final judgment of the United States District Court for the Southern District of New York entered after protracted litigation involving the validity of patent No. 1,526,982 issued to one Hill, assignor to the plaintiff-appellee, A. B. Dick Company, on February 17, 1925, for an improvement in stencil sheets.
The instant proceeding began on August 7, 1929, when the plaintiff-appellee sued James Marr, the defendant-appellant, in the court below for infringing the above patent. The latter answered on October 1, 1929, setting up the numerous defenses ordinarily found in litigation of the sort, and in addition thereto charged that the plaintiff had fraudulently suppressed evidence of prior use of the invention covered by the patent. Wherefore the defendant prayed that the plaintiff's bill of complaint "be dismissed at plaintiff's costs." The defendant also filed a counterclaim wherein he alleged in broad and general terms that because of the plaintiff's fraud he had suffered "loss and irreparable damage and injury" to his business in excess of $3,000 exclusive of interest and costs. The case came on for trial in the district court in April, 1932, and in June of that year the court entered an interlocutory decree enjoining the defendant from further infringement and referring the issue of the plaintiff's damages to a master. Hearings followed before the original master, and subsequently before his successor, which culminated nearly nine years later (October 8, 1941) in a report. Hearings on the report in the court below resulted in findings of fact and an opinion confirming the report, 48 F.Supp. 775, upon which final judgment was entered on October 2, 1943. The defendant then moved to reopen, for amendment of the findings, for new and additional findings and for the entry of a new judgment, but his motion was denied, and on December 28 the defendant filed notice of appeal from both the judgment and the order denying his motion to reopen. This court affirmed in June, 1946, 2 Cir., 155 F.2d 923, rehearing denied July 25, 1946, and the defendant filed a petition in the Supreme Court of the United States at its October Term 1946 for a writ of certiorari to review the above judgment of this court.
In the meantime both a civil action and a criminal prosecution under the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, had been instituted by the United States against A. B. Dick Company in the Northern District of Ohio, Eastern Division, wherein among other matters Dick was charged with having suppressed, or attempted to suppress, evidence of prior use of the invention covered by the Hill patent in furtherance of a conspiracy to monopolize interstate and foreign commerce in stencils. The Solicitor General of the United States brought the charges leveled against Dick in the antitrust litigation in Ohio to the attention of the Supreme Court of the United States in the instant case in a memorandum filed during the pendency of the petition for certiorari wherein he said that in view of the charges he deemed it his duty under Universal Oil Products Co. v. Root Refining Co., 1946, 328 U.S. 575, 580, 66 S.Ct. 1176, 90 L.Ed. 1447 to raise the question whether Dick's "prosecution of the instant case may not constitute a fraud upon the courts" and volunteered, if the court should wish to remand for inquiry into the truth of the facts alleged in the antitrust proceedings, the services of the United States as amicus curiae on the request of either the Circuit Court of Appeals or the District Court "in the framing and trial of the issue." In response to the Solicitor General's memorandum the Supreme Court on November 12, 1946, 329 U.S. 680, 67 S.Ct. 188, 91 L.Ed. 599, handed down a per curiam opinion granting the petition for writ of certiorari, vacating the judgment of the Circuit Court of Appeals, and remanding the cause to this court for consideration of the question raised by the Solicitor General in his memorandum as amicus curiae, i. e., "whether respondent's prosecution of the instant case may not constitute a fraud upon the courts."
Thereupon this court in its turn vacated its judgment and mandate thereon, and remanded the case to the District Court of the United States for the Southern District of New York from which it had come for consideration of the question stated above. The District Court on July 15, 1947, on the foregoing mandate of this court adopted the decisions of the Supreme Court and this court as its own and ordered the issue tried when framed by a judge of the court to be named thereafter.
Before the issue was framed and ready for trial, however, on March 25, and March 26, 1948, respectively, Dick consented to the entry of a decree in the Ohio civil antitrust case, and pleaded nolo contendere in the criminal one, thus terminating that litigation. And one of the provisions in the consent decree in the civil case was that Dick should not further prosecute any litigation with respect to the Hill patent. Dick accordingly moved in the district court to dismiss the instant case, but that court took the view that under the circumstances action on the motion should be postponed until after trial.
Completion of the pleadings and disposition of preliminary motions took many months. Detailed recitation of these matters is unnecessary. It will suffice to say that on August 10, 1949, the district court entered an order by consent of all concerned authorizing the Attorney General to participate in the proceeding as amicus curiae and directing that in the trial of the charges of fraud the amicus curiae:
"shall have the duty to present to the Court the available evidence bearing upon the charges, whether or not it supports the charges, to the end that the truth may be ascertained, and that the A. B. Dick Company and James Marr, doing business as Marr Duplicator Company shall have full opportunity to present evidence bearing upon the charges and to participate in the examination and cross examination of witnesses and in the argument before the Court, so that the customary procedure of an adversary proceeding may be observed."
Thereafter on January 12, 1950, the case was assigned to the Honorable Harold R. Medina for trial, and full hearing was held by him on various dates between May 22, and November 2, 1950, July, August and September excluded.
The trial was conducted throughout as a completely adversary proceeding. Many witnesses were called by the amicus, they were thoroughly examined and cross-examined by counsel for Dick, and numerous exhibits were introduced in evidence. Counsel for Marr also participated in the trial. At its conclusion the court prepared and filed a thorough and exhaustive opinion analysing each separate charge of fraud which had been leveled against the Dick Company, making evidentiary and ultimate findings of fact thereon. We find no occasion to state the facts found and the conclusions drawn from them. It will be enough to say that the court found all the charges of fraud unfounded with the result that it issued an order on remand answering the question propounded by the Supreme Court in the negative, i. e., it said specifically in its order that "respondent's prosecution of the instant case does not constitute a fraud upon the Court." Wherefore it further ordered that the defendant Marr's petition to vacate and set aside the decree and judgment theretofore entered in the case "be, and the same is, in all respects denied." But on the same day the court also granted the plaintiff Dick's longstanding motion to dismiss, and entered an order "that the action is dismissed, with prejudice, without costs."
The defendant Marr duly filed a notice of appeal from both orders and this court...
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...situation ... as though the suit had never been brought....' " Spring, 3 Ariz.App. at 383, 414 P.2d at 771, quoting A.B. Dick Co. v. Marr, 197 F.2d 498, 502 (2d Cir.1952). Lewis was then free to file a new complaint, which he did. Because the second case against Riebe was filed after the ef......
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