Allington v. Shevlin-Hixon Co., No. 532.

• Court: United States District Courts. 3th Circuit. United States District Court (Delaware)
• Citation: 2 F.2d 747
• Docket Number: No. 532.
• Parties: ALLINGTON et al. v. SHEVLIN-HIXON CO.
• Decision Date: 24 November 1924

2 F.2d 747 (1924)

ALLINGTON et al.
v.
SHEVLIN-HIXON CO.

No. 532.

District Court. D. Delaware.

November 24, 1924.

William G. Mahaffy, of Wilmington, Del., for plaintiffs.

Alfred H. Hildreth, of Boston, Mass., and Charles W. Smith, of Wilmington, Del., for defendant.

2 F.2d 748

MORRIS, District Judge.

The plaintiffs have moved that the bill of complaint, filed by them against the Shevlin-Hixon Company to enjoin the alleged infringement by that company of letters patent No. 1,123,155, owned by the plaintiffs, be dismissed without prejudice and with costs against the plaintiffs. An answer has been filed. No counterclaim is therein made. No testimony has been taken by either party. After the motion was set down for hearing, H. J. Burns asked to be made a party defendant. In his petition of intervention he alleges that he is the manufacturer of the apparatus claimed to infringe; that the apparatus in the plant of the Shevlin-Hixon Company, here complained of, was installed by him; that he assumed the defense of this suit, and has paid the expenses thereof with the knowledge of the plaintiffs; that he is informed and believes that prospective customers of defendant's apparatus have been threatened by the plaintiffs with infringement suits; that his business has been thus interfered with to his damage; and that he desires to avoid a multiplicity of suits and further damage to himself by having the question of whether or not the apparatus manufactured by him is an infringing one finally and promptly settled in and by this suit. In his proposed answer, which was submitted with the petition to intervene, Burns makes the allegations usual in an answer filed in an infringement suit. He also repeats therein the statements made, as above narrated, in his petition of intervention. He prays in his answer, not only that the bill of complaint be dismissed, but also, in reliance upon Kessler v. Eldred, 206 U. S. 285, 27 S. Ct. 611, 51 L. Ed. 1065, that the plaintiffs be perpetually enjoined from suing or threatening with suit on patent No. 1,123,155 either Burns or any purchaser, actual or prospective, of Burns' apparatus constructed and operating like the device alleged in the bill of complaint to operate in infringement of that patent. The motion of plaintiffs to dismiss their bill and the motion of Burns to intervene as a party defendant have been heard together. Affidavits have been filed by the plaintiffs and by Burns. The Shevlin-Hixon Company has done nothing with respect to either motion.

There is no local rule touching the voluntary dismissal of bills in equity. In the absence of such a rule the general principles of law pertaining thereto must govern. These principles have been recently summarized by Mr. Chief Justice Taft in Ex parte Skinner & Eddy Corp., 265 U. S. 86, 44 S. Ct. 446, 68 L. Ed. 912. There the following statement of the rule made in City of Detroit v. Detroit City Ry. Co. (C. C.) 55 F. 569, and approved in Pullman's Palace-Car Co. v. Central Transportation Co., 171 U. S. 138, 146, 18 S. Ct. 808, 43 L. Ed. 108, was again approved: "It is very clear from an examination of the authorities, English and American, that the right of a complainant to dismiss his bill without prejudice, on payment of costs, was of course except in certain cases. Chicago & A. R. Co. v. Union Rolling-Mill Co., 109 U. S. 702. The exception was where a dismissal of the bill would prejudice the defendants in some other way than by the mere prospect of being harassed and vexed by future litigation of the same kind."

In the Skinner & Eddy Case it was further...