Greenhood v. Orr & Sembower, Inc., Civ. A. No. 57-1157.
Decision Date | 28 January 1958 |
Docket Number | Civ. A. No. 57-1157. |
Citation | 158 F. Supp. 906 |
Court | U.S. District Court — District of Massachusetts |
Parties | E. Russell GREENHOOD, individually and as Trustee, v. ORR & SEMBOWER, Inc. and Frederick H. Klein. |
C. Carroll Cunningham, Boston, Mass., E. Russell Greenhood, pro se, for plaintiff.
Matthew Brown, Boston, Mass., for defendants.
Plaintiff alleges that he is the inventor of a lumber drying machine, called a Dryalator, on which he has applied for a patent. He further sets forth a certain license agreement between himself, Lumber Dryalators, Inc. (a corporation previously exclusively licensed to manufacture and distribute Dryalators) and defendant corporation whereby the latter was exclusively licensed to manufacture and distribute Dryalators. In the present complaint plaintiff alleges that the defendant Klein, individually and as agent of the corporate defendant, induced plaintiff to enter into this agreement by fraudulent representations, and asks to have the agreement declared null and void. Alternatively, if the court holds the agreement valid, he asks damages for the alleged negligence of defendants in the exercise of the license agreement.
There is another action, Civil Action No. 57-861-F, pending in this court by this plaintiff and Lumber Dryalators, Inc. solely against the corporate defendant and based on this same transaction. In that action plaintiff asks for a declaratory judgment interpreting certain provisions of the same licensing agreement and defining the rights and duties of the parties thereunder.
Defendant Klein moves to dismiss the complaint for lack of jurisdiction. Both defendants move to dismiss the complaint for failure to state a claim on which relief can be granted and also because it is duplicitous because of the existence of the earlier action No. 57-861-F. Alternatively, they ask that certain paragraphs of the complaint be stricken. Defendants further move to strike plaintiff's claim for a jury trial.
Defendant Klein's motion to dismiss is based on his allegation that he is a resident of Pennsylvania not subject to service of process in Massachusetts and hence not subject to the jurisdiction of this court. Plaintiff does not contest this claim and it is admitted no service of process has been made on Klein. However, plaintiff contends that Klein by joining with the corporate defendants in a motion to dismiss on grounds going to the merits of the complaint has waived any objection to lack of jurisdiction and has thus voluntarily submitted himself to the jurisdiction of this court. This contention must be rejected. Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. specifically provides that: "No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion." A defendant no longer needs to protect his rights by appearing specially solely to object to the jurisdiction of the court but may properly join the defense of lack of jurisdiction with other defenses without thereby waiving his rights. Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir. 139 F.2d 871, 874; W. H. Elliott & Sons Co., Inc., v. E. & F. King & Co., Inc., D.C., 144 F.Supp. 401; 2 Moore's Federal Practice, ¶ 12.12 pp. 2260-2264. The motion of defendant Klein to dismiss will be allowed.
Defendants further contend that the complaint fails to state a claim on which relief can be granted. Plaintiff however has alleged that defendants made certain representations as to their intentions, that these representations were false, that they were made for the purpose of inducing plaintiff to act thereon, that plaintiff did act thereon, and that plaintiff suffered loss as a result thereof. Defendants' only objection to the sufficiency of this as a statement of a claim based on misrepresentation is that the only misrepresentation alleged is of defendants' intentions. However, the complaint can fairly be read as alleging (as plaintiff now contends in his argument) not merely a failure to keep a promise, but misrepresentations by defendants of a state of mind, in that defendants represented that they intended to do certain things which they then and there actually did not intend to do. C. Corkin & Sons, Inc., v. Tide Water Associated Oil Company, D.C., 20 F.R.D. 402; Fanger v. Leeder, 327 Mass. 501, 99 N.E.2d 533. The complaint states at least this claim upon which relief may be granted.
Defendants' contention that this claim is barred by the parole evidence rule cannot be accepted. Plaintiff here is not trying to vary the terms of the contract so as to include in these terms promises allegedly made...
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Standard Chlorine of Delaware, Inc. v. Leonard
...have traditionally been considered equitable in nature. Cf. Smith v. Bear, 237 F.2d 79 (2d Cir. 1956); Greenhood v. Orr & Sembower, Inc., 158 F.Supp. 906 (D. Mass.1958). See 5 Moore's Federal Practice ¶¶ 38.22 and 38.23 (2d ed. 1966). We have not overlooked the fact that Standard sought the......
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McCullough v. Dairy Queen, Inc.
...relief and the issue of damages was incidental, and defendants were not entitled to a jury trial. 3 See Greenhood v. Orr & Sembower, Inc., D.C.Mass.1958, 158 F.Supp. 906, where the court held that the relief requested by plaintiff was a declaration that a franchise granted to the defendants......