National Mach. Co. v. WATERBURY FARREL FDRY. & MACH. CO.
| Decision Date | 22 May 1961 |
| Docket Number | No. 367,Docket 26819.,367 |
| Citation | 290 F.2d 527 |
| Parties | NATIONAL MACHINERY COMPANY, Plaintiff-Appellee, v. WATERBURY FARREL FOUNDRY AND MACHINE COMPANY and Textron, Inc., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Willis H. Taylor, Jr., New York City (John C. Oram, Jr., and Pennie, Edmonds, Morton, Barrows & Taylor, New York City, on the brief), for defendants-appellants.
H. F. McNenny, Cleveland, Ohio (Richey, McNenny & Farrington, Cleveland, Ohio; Wiggin & Dana, New Haven, Conn., and F. E. Callahan, New Haven, Conn., on the brief), for plaintiff-appellee.
Before LUMBARD, Chief Judge and MOORE, Circuit Judge, and STEEL, District Judge.*
The defendant in this patent suit appeals from an order of the district court denying leave for it to amend its answer so as to assert permissive counterclaims arising out of two patents similar to those on which the plaintiff brought suit. The defendants' motion was made more than two years after the answer was filed. It was denied by the district judge who said, "The tardy injection of these new issues by the defendant will set off a new string of discovery and disclosure which will undoubtedly delay this case many more months; the plaintiff will be unfairly prejudiced in getting its case tried."
This order certainly did not amount to a final decision so as to be appealable under 28 U.S.C. § 1291. E. g., Balboa Shipping Co. v. Standard Fruit & Steamship Co., 2 Cir., 1950, 181 F.2d 109; see Parr v. United States, 1956, 351 U.S. 513, 518, 76 S.Ct. 912, 100 L.Ed. 1377. Nor was it a "final judgment upon one or more * * * claims" so as to authorize an immediate appeal upon certification by the district judge under Federal Rule of Civil Procedure 54(b), 28 U.S.C., and decisions following Cold Metal Process Co. v. United Engineering & Foundry Co., 1956, 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311. By refusing to permit the defendant to assert the claims in this suit, the court did not decide or reflect upon the merits. It merely forced the defendant to institute new proceedings in the same or in another forum where the plaintiff could be served. Cf. Thompson v. Broadfoot, 2 Cir., 1948, 165 F.2d 744 denial of motion for permissive intervention held non-appealable.
It being undisputed that the amended counterclaims would have demanded injunctive relief, the appellant contends that in denying leave to amend the district judge was refusing an injunction and that his action is reviewable immediately under 28 U.S.C. § 1292(a) (1). There is support in the Seventh and Ninth Circuits for this position. Switzer Bros. v. Locklin, 7 Cir., 1953, 207 F.2d 483, certiorari denied 1954, 347 U.S. 912, 74 S.Ct. 477, 98 L.Ed. 1069; In-A-Floor-Safe Co. v. Diebold Safe & Lock Co., 9 Cir., 1937, 91 F.2d 341; Hancock Oil Co. v. Universal Oil Products Co., 9 Cir., 1940, 115 F.2d 45.
We hold, however, that a district court's denial of leave to assert a permissive counterclaim is not appealable under 28 U.S.C. § 1292(a...
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Spangler v. United States
...supra, draws a distinction which is applicable here. He stated, "The distinction taken in National Machinery National Machinery Co. v. Waterbury Farrel Foundry & Machine Co. (2 Cir. 1961) 290 F.2d 527 was between a `refusal\' based on an allegedly erroneous conclusion that the law does not ......
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Western Geophysical Co. of Amer. v. Bolt Associates, Inc.
...Professors Moore and Ward state that Stewart-Warner can be reconciled with our previous decision in National Machinery Co. v. Waterbury Farrel Foundry & Mach. Co., 290 F.2d 527 (2 Cir. 1961), "only by assuming that the majority viewed the appeal as one from an order dismissing a compulsory ......
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Stewart-Warner Corp. v. Westinghouse Electric Corp.
...197 F.2d 757 (2 Cir. 1952), sustaining the appealability of the orders there under review, or by National Machinery Co. v. Waterbury Farrel Foundry & Mach. Co., 290 F.2d 527 (2 Cir. 1961), denying it.1 In National Machinery, also a patent suit, the defendant sought leave "to amend its answe......
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Williams v. Wallace Silversmiths, Inc., a Div. of HMW Industries, Inc.
...based "on the wisdom of consolidating certain claims for trial". Id. at 828 (quoting National Machinery Co. v. Waterbury Farrell Foundry & Mach. Co., 290 F.2d 527, 528 (2 Cir.1961) (per curiam)). As Judge Friendly said in Stewart-Warner: 3 "Where the order is of the former type, the danger ......