Ostow & Jacobs, Inc. v. Morgan-Jones, Inc.

• Decision Date: 17 February 1960
• Citation: 189 F. Supp. 697
• Parties: OSTOW & JACOBS, INC., Plaintiff, v. MORGAN-JONES, INC., and Aileen Mills Co., Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

189 F. Supp. 697

OSTOW & JACOBS, INC., Plaintiff, v. MORGAN-JONES, INC., and Aileen Mills Co., Inc., Defendants.

United States District Court S. D. New York.

February 17, 1960.

Charles Sonnenreich, New York City, for plaintiff.

Burke & Burke, New York City, for defendant Morgan-Jones, Inc., Harold W. Wolfram, George I. Harris, New York City, of counsel.

DIMOCK, District Judge.

Defendant Morgan-Jones, Inc., hereinafter Morgan-Jones, moves for reargument of its motion, which I denied, to dismiss the complaint. The motion was made on the ground that the federal court lacked jurisdiction of the claim against Morgan-Jones. Plaintiff based its opposition to the motion largely on a letter dated May 7, 1959, and I assumed in denying the motion that the claim was supported by the letter. It now appears that that letter was not written until two days after the suit was brought against Morgan-Jones and Morgan-Jones now grounds its motion for reargument largely on that fact.

The motion to dismiss for lack of jurisdiction of the federal court was made upon an affidavit that defendant Morgan-Jones had no right, title or interest in the patent which Morgan-Jones claimed was valid and infringed. On the argument it turned out that Morgan-Jones was not an owner of the patent or even a licensee so that there was a grave question whether jurisdiction could be grounded upon the status of Morgan-Jones with respect to the patent. The complaint, however, contained allegations which would support a claim that plaintiff's goods were disparaged by assertion by Morgan-Jones that there was an applicable patent. In my original opinion I relied upon the letter of May 7 as establishing prima facie such disparagement of title. As above stated this letter was not written until two days after the action was begun as against Morgan-Jones.

No facts have been asserted by way of affidavit which would throw any doubt on plaintiff's allegation of Morgan-Jones' disparagement of its goods. All that Morgan-Jones has done is to show that the letter of May 7, which the court accepted as the instance of disparagement on which plaintiff relied, was not written until two days after the suit was brought against Morgan-Jones. It may be that, even in an equity suit like this, if there were not facts enough to support jurisdiction at the time it was begun, later happening facts could not supply the deficiency. Wappler v. Woodbury Co., 246 N.Y. 152, 158 N.E. 56. Plaintiff does not, however, have to present affidavits to support his complaint on this motion unless defendant presents facts tending to show that the allegations of the complaint cannot be supported.

It is true that it has been held that the burden is always on the plaintiff to show that the court has jurisdiction. Williams v. Minnesota Mining & Manufacturing Co., D.C.S.D.Cal.C.D., 14 F.R.D. 1. This cannot mean, however, that a defendant, without any...