Bereslavsky v. Kloeb
| Decision Date | 30 June 1947 |
| Docket Number | No. 10451.,10451. |
| Parties | BERESLAVSKY v. KLOEB. |
| Court | U.S. Court of Appeals — Sixth Circuit |
W. Brown Morton, of New York City (Pennie, Edmonds, Morton & Barrows, Curt Von Boetticher, Jr. and W. B. Morton, Jr., all of New York City, of counsel), for petitioner.
Frank S. Busser, of Philadelphia, Pa., for respondent.
Before SIMONS, ALLEN and MILLER, Circuit Judges.
The petitioner is plaintiff in a patent infringement suit begun by bill in equity against the Sun Oil Company, seeking the usual injunction and accounting. On July 21, 1945, the Judge Advocate General of the Army requested that trial therein and in a similar suit pending in New York, be postponed until after the war emergency, because the patent involved data, the disclosure of which might be inimical to the United States. Conforming to the request both causes were removed from the trial calendars in their respective courts. On May 21, 1946, the patent in suit expired. Thereafter, on August 27, the petitioner moved for leave to amend his petition, striking the prayer for equitable relief and accounting under R.S. § 4921, 35 U.S.C.A. § 70, and substituting therefor a prayer for money damages under R.S. § 4919, 35 U.S. C.A. § 67, and an order granting the motion was entered September 24.
On October 2, 1946, an amended complaint was filed seeking money damages, and five days thereafter the plaintiff demanded a jury trial pursuant to Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. On February 10, 1947, the Sun Oil Company, defendant, moved to strike the order granting petitioner's jury demand. The motion was granted by the district judge on February 25, 1947. The writ of mandamus is sought to direct the court to vacate his order.
The problem is identical with that resolved by the Second Circuit Court of Appeals in Bereslavsky v. Caffey, District Judge, 161 F.2d 499. There the writ was granted with a supporting opinion that would seem adequately to dispose of the present cause were it not for the respondent's insistence that the question have our independent and fully considered judgment. Rule 38 provides that any party may demand a trial by jury of any issue triable of right by making written demand therefor, but not later than 10 days after the service of the last pleading directed to the issue, and that failure to serve such demand constitutes a waiver of jury trial. The petitioner's position is that at the time of the filing of the last original pleading he could not have asked for a jury because the action was then cognizable solely in equity, and it was not until the amended complaint for damages was filed that his right to a jury arose. The respondent contends that the petitioner could have demanded a jury trial in the original action under § 4921, and not having done so waived the right. Its principal argument in support of that contention is that the Rules of Civil Procedure have eliminated all procedural differences between law and equity.
The power of the court, in aid of its appellate jurisdiction, to issue the writ now prayed, is not and may not be questioned. Ex Parte Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; United States Alkali Ass'n. v. United States, 325 U.S. 196, 204, 65 S.Ct. 1120, 89 L.Ed. 1554. Section 4921 vests in the several district courts of the United States, jurisdiction in cases arising under the patent laws and authorizes the granting of injunctions according to the course and principles of courts of equity to prevent the violation of any rights secured by patent, and empowers the court to grant recovery of profits and damages. While the Rules of Civil Procedure (Rule 2) provide for one form of action, we agree with the Second Circuit Court of Appeals that they have not completely obliterated for all purposes, the historic differences between law and equity. They have, for the purpose of achieving a simplified procedure, abolished technical differences, but cases that historically were equitable are still to be tried to the court, and those that were legal, to the jury. It is true that the Chancellor may separate legal issues and send them to the jury once equitable issues have been disposed of, but this does not prevent him from exercising his historic power to dispose of the whole case as Chancellor. Beaunit Mills v. Eday Fabric Sales Corp., 2 Cir., 124 F.2d 563; Bellavance v. Plastic-Craft Novelty Co., D.C.Mass., 30 F.Supp. 37; Williams v. Collier,...
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