Farkas v. Texas Instruments, Inc., 7560.

• Decision Date: 10 July 1970
• Docket Number: No. 7560.,7560.
• Citation: 429 F.2d 849
• Parties: Adam FARKAS, Appellant, v. TEXAS INSTRUMENTS, INC. and Ling-Temco-Vought, Inc., Appellees.
• Court: U.S. Court of Appeals — First Circuit

429 F.2d 849 (1970)

Adam FARKAS, Appellant, v. TEXAS INSTRUMENTS, INC. and Ling-Temco-Vought, Inc., Appellees.

No. 7560.

United States Court of Appeals, First Circuit.

Heard June 4, 1970.

Decided July 10, 1970.

Adam Farkas, pro se.

Lane McGovern, Boston, Mass., with whom Ropes & Gray, Boston, Mass., was on brief, for Texas Instruments, Inc., appellee.

Harold Lavien, Boston, Mass., with whom Brown, Rudnick, Freed & Gesmer, Boston, Mass., was on brief, for Ling-Temco-Vought, Inc., appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

PER CURIAM.

Plaintiff brought this damage action against Texas Instruments, Inc. (TI) and Ling-Temco-Vought, Inc. (LTV), both Delaware corporations alleged to be doing business in Massachusetts, for what appears to be wrongful discharge and conspiracy. Plaintiff appeals from orders dismissing the suit against TI for lack of jurisdiction over the person and denying leave to file an amended complaint against LTV.

The action against TI was dismissed on the ground that service of process in accordance with Mass.Gen. Laws Ann. ch. 181, § 3A (Supp., 1970) was ineffective, as TI was not doing business in the Commonwealth. On the assumption that the manner of service made would, in a proper instance, be effective under Mass.Gen.Laws Ann. ch. 223, § 38 (1958), the district court ruled that jurisdiction was nevertheless lacking because TI was not doing business in the state and that the claim in question did not arise out of any activity by TI in Massachusetts. Cf. Caso v. Lafayette Radio Electronics Corp., 370 F.2d 707 (1st Cir.1966). Prior to argument, this court requested the parties to show cause why the judgment below should not be affirmed under Local Rule 5 (now 6) in light of our recent decision in Seymour v. Parke, Davis, Inc., 423 F. 2d 584 (1st Cir.1970). The plaintiff responded by contending that TI operates a large plant in Attleboro, Massachusetts, and is therefore doing business in the state. Counsel for TI represented to the court that the Attleboro plant is owned by a TI subsidiary, Texas Instruments, Inc., a Massachusetts corporation, and not by TI, against whom the action was brought. The court thereupon extended leave to the plaintiff to file copies of official documents, from the Secretary of State or otherwise, that would show that Texas Instruments, Inc. (Attleboro) is the same corporation as TI. Plaintiff having failed to do so,¹ the judgment of dismissal is affirmed on the opinion of the district court, Farkas v. Texas Instruments, Inc., C.A. No. 67-369-M (D.Mass., filed Dec. 31, 1969), and Seymour v. Parke, Davis, Inc., supra.

In the action against LTV, it is helpful to review the history of the litigation in considering the propriety of the district court's denial of plaintiff's motion of February 18, 1969, for leave to file an amended complaint. The original complaint was filed on May 5, 1967. LTV moved to strike the complaint under Fed.R.Civ.P. 12(f) and, as the original complaint was an extreme example of poor pleading, the district court struck it in toto, as to LTV, on September 11, 1967. Plaintiff moved for leave to amend on September 21 and, although the proposed amended complaint was hardly a model of fine draftmanship, it did allege a conspiracy between LTV and TI to falsify plaintiff's medical records and thereby to prevent his securing employment. The motion was denied on November 9. Another motion for leave to amend was filed on November 22, the proposed complaint again setting forth, amidst a mass of irrelevant material, a claim that LTV and TI conspired as recited above. Leave was denied on June 25, 1968. Having been unsuccessful in bringing a complaint before the district court, plaintiff on June 28, 1968, filed a motion for "early judgment" in an apparent attempt to lay a foundation for an appeal. The motion was renewed on September 18, September 23, and November 5. On December 31, 1968, the district court granted LTV's motion to dismiss the action, but on January 2, 1969, vacated the judgment and denied the motion to dismiss. On February 4, 1969, plaintiff finally secured counsel and on February 18 another motion for leave to amend was filed. The proposed complaint, this time in proper form, alleged, inter alia, that LTV and TI conspired to prevent plaintiff from obtaining gainful employment. Leave to file the proposed complaint was denied and the action dismissed, both without opinion, on January 20, 1970. Plaintiff moved for rehearing, but subsequently withdrew his motion.

Although amendment of pleadings is largely a matter within the discretion of the district court, Rule 15(a) provides that "leave shall be freely given when justice so requires." And, as the Supreme Court has stated, leave should be granted:

"in the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment * * *." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230,

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