Green v. Gravatt
| Decision Date | 01 November 1940 |
| Docket Number | No. 882.,882. |
| Citation | 35 F. Supp. 491 |
| Parties | GREEN v. GRAVATT et al. |
| Court | U.S. District Court — Western District of Pennsylvania |
Charlton Ogburn, of New York City, and David M. Harrison, of Pittsburgh, Pa., for plaintiff.
Benjamin C. Sigal, of Pittsburgh, Pa., for defendants.
Defendants filed a motion to dismiss plaintiff's bill of complaint and alleged in support thereof several reasons. The court, in an opinion, D.C., 34 F.Supp. 832, filed September 12, 1940, sustained defendant's motion as to the first reason, namely, that the complaint did not show the requisite diversity of citizenship between all parties plaintiff and all parties defendant. The defendants, also, filed a motion prior to said opinion, wherein it was prayed that proceedings in the present action be stayed until a like action in the District Court of the United States for the District of Columbia be prosecuted to final judgment or otherwise disposed of. In the opinion, aforesaid, the court held that the defendant was entitled to have the latter motion granted but made no order thereon by reason of the court having sustained the defendant's motion to dismiss. Since the filing of said opinion, plaintiff has filed a motion wherein he moves to strike out as parties defendant, the unincorporated associations named as defendants. This motion was set down for hearing and was heard; also, a rehearing was held on the motion to stay proceedings in the action pending in the District Court of the United States for the District of Columbia. We will now consider said motion to stay.
April 11, 1938, William Green, individually and as president and on behalf of the officers and members of the American Federation of Labor, an unincorporated association; Frank Morrison, individually and as secretary and treasurer and on behalf of the same persons of the American Federation of Labor and the American Federation of Labor, filed a complaint against John Brophy, individually and as director of the Committee for Industrial Organization, an unincorporated association; John L. Lewis, individually and as chairman for the same committee, and the Committee for Industrial Organization in the United States District Court for the District of Columbia. The court held in said action, that certain indispensable parties were not parties thereto. Amendments to the complaint were filed November 14, 1938, and February 9, 1940, naming additional defendants who were sued individually and as officers of the Aluminum Workers Union No. 18356, an unincorporated association, an individual in his individual capacity and as president of Local No. 2 International Aluminum Workers of America, an unincorporated association, and a person named individually and as president of the International Union, Aluminum Workers of America. Said action is based on allegations that the Aluminum Workers Union No. 18356, while affiliated with the American Federation of Labor, improperly transferred to the Committee for Industrial Organization $29,212.72; that said union had been expelled by the American Federation of Labor because of said transfer and by reason of its failure to pay a per capita tax in accordance with the constitution of the American Federation of Labor, and that as a result, the American Federation of Labor became entitled to the funds of said union No. 18356. In the complaint, it is prayed that defendants make restitution by paying to the American Federation of Labor the said sum of $29,212.72 and for other and further relief as the nature of the case requires.
A summons issued in said action against the persons named as indispensable parties. A return of n. e. i. was made. Constructive service by publication, as authorized by statute, has not yet been made on said parties.
The present action was brought May 6, 1940. It appears from an examination of the record in this action, and in the action pending in the District of Columbia, that the parties and issues are substantially the same in both actions. Some additional relief of a minor character is specifically prayed for in the present action which is not sought in the District of Columbia action, but in the District of Columbia action, there is a general prayer for relief.
In Milwaukee Gas Specialty Co. v. Mercoid Corporation, 7 Cir., 104 F.2d 589, 592, it appears that on June 13, 1938, the Mercoid Corporation filed in the United States Court for the Eastern District of Wisconsin, its petition for declaratory decree, alleging that the Milwaukee Gas Specialty Company, defendant, had wrongfully charged the Mercoid Corporation with infringement of the patent involved and prayed the court to decide whether the patent was valid, and if so, whether it was infringed by the Mercoid Corporation.
June 29, 1938, the Milwaukee Gas Specialty Company sued the Mercoid Corporation for infringement of the same patent in...
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...a stay of proceedings, not being a defense within the meaning of Fed.R.Civ.P. 12(b), may be properly raised by motion. Green v. Gravatt, 35 F.Supp. 491 (W.D.Pa.1940). Cf. Evans v. Hudson Coal Co., 165 F.2d 970 (3d Cir. 1948); Butler v. Judge of United States District Court, 116 F.2d 1013 (9......
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