METLON CORPORATION v. Dow Chemical Company
| Decision Date | 29 December 1959 |
| Citation | 182 F. Supp. 546 |
| Parties | METLON CORPORATION, Plaintiff, v. DOW CHEMICAL COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Leon, Weill & Mahoney, New York City, for plaintiff.
Emery, Whittemore, Sandoe & Graham, New York City, for defendant, Thomas B. Graham, New York City, of counsel.
FREDERICK van PELT BRYAN, District Judge.
Plaintiff Metlon sues for a judgment declaring inter alia that patent No. 2,714,569 (the so-called Prindle patent) owned by defendant Dow Chemical Company is invalid or that, if valid, it has not been infringed by plaintiff. Defendant moves to stay the action pending the determination of certain issues in a case involving the same parties now pending before the United States District Court for the Western District of North Carolina. The North Carolina action was commenced prior to the suit at bar. See Cresta Blanca Wine Co. v. Eastern Wine Co., 2 Cir., 143 F.2d 1012, 1014.
The North Carolina action was brought by Dow as plaintiff against Metlon as defendant for the alleged infringement by Metlon of two patents, one of which is the Prindle patent involved in this action. Metlon moved to dismiss the action for improper venue. In an oral opinion Judge Warlick dismissed the action in so far as it involved the Prindle patent for want of venue on the ground that there were no acts which would constitute infringement in the Western District of North Carolina. See 28 U.S. C. § 1400(b).
Plaintiff then brought on what it calls an "informal" motion for reargument of the decision dismissing the action as to the Prindle patent which was denied on December 11, 1959. On the same day a formal motion pursuant to Rule 52(b), F.R.Civ.P., 28 U.S.C. was made requesting additional findings and amendment of the judgment, apparently for relief similar to that sought in its "informal" motion for reargument.
Plaintiff claims on this motion that it is entitled to a stay of the action against it in this court pending a final determination of the venue question on appeal from Judge Warlick's decision to the Fourth Circuit Court of Appeals. Such a stay is not warranted. The fact that venue is at least dubious in North Carolina but (as I will point out a little later) is proper here, impels me not to exercise my discretionary power to stay the action in plaintiff's behalf. It would not, in my judgment, be "in accord with equitable principles and conducive to justice between the parties" to stay this action pending the determination of the appeal in North Carolina. Cresta Blanca Wine Co. v. Eastern Wine Co., supra, 143 F.2d at page 1014. However, I will grant a stay pending the determination of the plaintiff's pending motion under Rule 52 (b) which, judging from the prior course of the proceedings in the North Carolina action, should involve little delay and not impose any hardship on the plaintiff. In the event that defendant, on its motion under Rule 52, succeeds in obtaining a holding that there is venue in North Carolina over the action on the Prindle patent it may reapply for a permanent stay of the action in this court.
Defendant further asks for a direction that plaintiff be...
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