Parissi v. Foley, Docket 22589.
| Decision Date | 27 March 1953 |
| Docket Number | Docket 22589. |
| Citation | 203 F.2d 454 |
| Parties | PARISSI v. FOLEY, United States District Judge. |
| Court | U.S. Court of Appeals — Second Circuit |
Andros & Smith, Albany, N. Y. (Harry A. Smith, Albany, N. Y., of counsel), for petitioner.
Whalen, McNamee, Creble & Nichols, Albany, N. Y. (Charles H. Walker, Henry J. Zafian, Charles M. Allen, New York City, of counsel), for respondent.
Before SWAN, Chief Judge, and L. HAND, and FRANK, Circuit Judges.
In this suit by Telechron, Inc. and General Electric Company v. Parissi, the complaint, filed December 22, 1950, sought a declaratory judgment (1) that three patents issued to defendant are invalid and not infringed, and (2) that neither plaintiff has violated any other rights of defendant including rights based on any alleged confidential disclosure of any of the subject matter of the patents. On April 25, 1951, defendant filed an answer which, among other things, denied the non-patent allegations of the complaint. On November 19, 1951, defendant moved to strike those non-patent allegations from the complaint. The trial began, before Judge Foley without a jury, on November 19, 1951. On the first day of the trial, defendant orally amended his answer by designating part of it as a counterclaim. This amendment resulted in (1) an allegation that plaintiffs had "wilfully infringed," and "still are wilfully infringing" defendant's patents and (2) a prayer for damages resulting from plaintiffs' infringement and for injunctive relief. On December 28, 1951, after sixteen days of trial, Judge Foley made an order granting defendant's motion to strike the complaint's non-patent allegations. The trial was adjourned pending plaintiffs' appeal to this court from that order. We reversed it. See Telechron, Inc., v. Parissi, 2 Cir., 197 F.2d 757. Thereafter, defendant sought to amend his answer by adding a second counterclaim based on the non-patent claims. Judge Foley made an order permitting defendant to do so, on condition that this counterclaim and plaintiffs' reply thereto "shall not affect or prejudice the resumption of the trial herein before the Court, Honorable James T. Foley, Judge, on January 6, 1953, the date heretofore fixed by him for such purpose." Defendant filed his amended answer on December 20, 1952; plaintiffs' reply followed on December 23; and on December 24 defendant filed a jury demand. On plaintiffs' motion, Judge Foley made an order striking this demand. Defendant now petitions us to issue a writ of mandamus directing Judge Foley to vacate that order.
We have power to issue such a writ when a jury demand has been erroneously denied, and therefore to entertain this petition. See the discussion in ...
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Damsky v. Zavatt
...Inc. v. Westover, 1959, 359 U.S. 500, 511, 79 S.Ct. 948, 3 L.Ed.2d 988; Goldblatt v. Inch, 2 Cir., 1953, 203 F.2d 79; Parissi v. Foley, 2 Cir., 1953, 203 F.2d 454; this, however, it contests. We have concluded that the writ must issue as to so much of the complaint as seeks a personal judgm......
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Hostrop v. Board of Jr. College Dist. No. 515, Cook and Will Counties and State of Ill.
...that the jury demand be withdrawn. Compare Chicago Pneumatic Co. v. Hughes Tool Co., 192 F.2d 620, 631 (10th Cir. 1951); Parissi v. Foley, 203 F.2d 454; 455-456 (2d Cir. 1953), Rev'd on other grounds sub nom. Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955); and Be......
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Local 783, Allied Industrial Wkrs. v. General Electric Co.
...the amended complaint. We think that, given the proper circumstances, such action by the judge would be reasonable. See Parissi v. Foley, 203 F.2d 454 (2d Cir. 1953), rev'd on other grounds, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955). The question, then, is whether the circumstances in ......
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Telechron, Inc. v. Parissi
...during the trial involving jurisdiction and right to trial by jury. See Telechron, Inc. v. Parissi, 2 Cir., 197 F.2d 757; Parissi v. Foley, 2 Cir., 203 F.2d 454. There is little doubt in my mind that the declaratory judgment suit here was launched as a well planned counterattack to the prev......