Moore v. Coats Company
| Decision Date | 23 September 1959 |
| Docket Number | No. 12855.,12855. |
| Citation | 270 F.2d 410 |
| Parties | Roosevelt MOORE, Appellant, v. COATS COMPANY and Jack P. Hennessy Co., Inc. |
| Court | U.S. Court of Appeals — Third Circuit |
Roosevelt Moore, pro se.
Frank Hancock Hennessy, Englewood, N. J. (Hennessy & Mowry, Englewood, N. J., on the brief), for Coats Co.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
The plaintiff-appellant Moore, who, first represented by counsel, later appeared here and in the court below pro se, filed suit in August, 1958, against the United States, The Coats Company, one of the appellees, and others, alleging infringement of United States Patent No. 2,482,789 owned by Moore. The original defendants moved to dismiss the original complaint, alleging want of venue jurisdiction because the requirements of Section 1400(b), Title 28 U.S.C. had not been met. After several continuances in order to give Moore an opportunity to obtain counsel, the motion finally was argued. On October 8, 1958, and before a decision on the motion, Moore amended his complaint to set forth a cause of action as a contributory infringer against Jack P. Hennessy Co., Inc., alleging it to be the distributor and general sales agent for Coats, and that Hennessy was doing business in Englewood, New Jersey. Hennessy was duly served with process. Hennessy then filed a motion to dismiss the complaint as to it on the ground that it did not maintain a place of business for Coats in New Jersey. This motion was irrelevant for Moore's amended complaint charged Hennessy, as we have said, with being a contributory infringer.1 Thereafter the court below first granted the motions to dismiss the complaint as to all of the other original defendants save Coats and later both as to Coats and Hennessy on the ground that there was a lack of jurisdiction and that venue had not been properly laid.
It is clear that as to all the defendants, save Hennessy the venue requirements of Section 1400(b), Title 28 U.S.C., have not been met by the plaintiff-appellant for the record shows that these corprations do not reside in New Jersey, have not committed acts of infringement there and do not have a regular and established place of business therein.2 See Fourco Glass Co. v. Transmirra Corp., 1957, 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 holding that Section 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions. But it is equally clear that it is alleged that Hennessy does have a place of business in New Jersey, does reside there and has committed acts of infringement therein.
There can be no question but that the court has venue jurisdiction in respect to Hennessy or that the suit could be maintained had that company been named as a party defendant in the original complaint. Hennessy asserts that the court below was without jurisdiction of the parties when the case was filed and the fact that the suit was "belatedly" dismissed only after the amendment making Hennessy a party, could not instill jurisdiction in the court below for the suit was "dead" when Hennessy was brought into it by the amendment. This contention is based on the theory that venue jurisdiction must inhere in a suit from its inception. Compare Willing v. Provident Trust Company, D.C.E.D.Pa. 1937, 21 F.Supp. 237, 238, relied on by Hennessy. The authority cited is clearly distinguishable.
Section 1653, Title 28 U.S.C., provides that "Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." The statute confers jurisdiction on a United States court to consider an amendment such as that at bar. Moreover, since the plaintiff-appellant appears pro se and is unskilled in the law, we must view his pleading and the applicable procedure liberally. Picking v. Pennsylvania R. Co., 3 Cir., 1945, 151 F.2d 240, 244. The amended complaint based on contributory infringement grows out of the same patent originally sued on. Under the rule of permissive joinder, Rule 20(a), Fed.R.Civ.Proc., 28 U.S.C., Hennessy could have been made an original party-defendant and the suit as to him could not have been dismissed even though the other original parties had been joined with him as co-defendants. Under the same rule the suit being pending, he could be joined as he was here. It seems of little consequence under the circumstances that the amendment with which we are concerned came late. Venue jurisdiction clearly exists as to Hennessy under the amendment. The suit had not been dismissed when the amendment was filed. It existed and Hennessy could be and was made a party.
There is ample authority to support the proposition that a complaint may be amended pursuant to Section 1653 in order to supply allegations necessary to sustain jurisdiction. While most of the authorities deal with the acquiring or perfecting of diversity jurisdiction, the same considerations should be applicable, for reasons hereinafter stated, to a suit for patent infringement. The strictness, or lack of...
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Field v. Volkswagenwerk AG
...in the trial or appellate courts" (emphasis added). Relying solely on this Court's prior decision construing § 1653 in Moore v. Coats Co., 270 F.2d 410 (3d Cir. 1959), the dissent would hold that jurisdiction is now to be determined not "by the condition of the parties at the commencement o......
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...dismissal of suits on technical grounds. John Birch Society v. National Broadcasting Co., 377 F.2d 194 (2d Cir. 1967); Moore v. Coats Co., 270 F.2d 410 (3rd Cir. 1959). Accordingly, we direct that upon remand of this action appellants be permitted to amend their complaint to allege jurisdic......
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Page v. Alliant Credit Union, Civ. No. 2:18-cv-11481 (SDW)(CLW)
...broadly so as to avoid dismissal of diversity suits on technical grounds." See Kiser, 831 F.2d at 427 (citing Moore v. Coats Co., 270 F.2d 410, 412 (3d Cir. 1959)). Indeed, "every Court of Appeals that has considered the scope of § 1653 has held that it allows appellate courts to remedy ina......
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Summit Office Park, Inc. v. U.S. Steel Corp.
...Inc. v. Dolman, 9 Cir. 1964, 333 F.2d 257, 265, cert. denied, 1965, 380 U.S. 956, 85 S.Ct. 1081, 13 L.Ed.2d 972; Moore v. Coats Co., 3 Cir. 1959, 270 F.2d 410. It is true that this case involves amendment to change plaintiffs and Moore, for example, involved a change of defendant, but the m......