Stiller v. SQUEEZ-A-PURSE CORPORATION, 13305.
| Decision Date | 23 January 1958 |
| Docket Number | No. 13305.,13305. |
| Parties | Benjamin STILLER and William B. Stiller, Kathryn G. Stiller, Mary Lou Burns, Michael Stiller, and Susan Stiller, d/b/a Quickey Sales Company, Defendants-Appellants, v. SQUEEZ-A-PURSE CORPORATION, Plaintiff-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Albert R. Teare, Cleveland, Ohio, (Bates, Teare & McBean, Cleveland, Ohio, J. William Freeman, Akron, Ohio, on the brief), for appellants.
William R. Liberman, New York City, (Sanford Schnurmacher, Cleveland, Ohio, on the brief), for appellee.
Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.
This is an appeal from an order of the district court restraining appellant Benjamin Stiller from prosecuting a suit for the infringement of his patent, then pending in the United States District Court in North Carolina.
Appellant had filed the suit in North Carolina against a sales agent of appellee, claiming that the sales agent knew that appellee company had manufactured the goods which he was selling; and that the appellee had infringed appellant's patent in manufacturing such goods for sale. The action in North Carolina was filed five days before appellee filed its action in the United States District Court in Cleveland, Ohio. It appears that appellee was a New York manufacturer, and appellant, a resident of Akron, Ohio. Prior to appellant's commencement of his action in North Carolina, appellee offered to accept service of process in New York, its place of business; and thereafter, appellant further offered to bring an action for a declaratory judgment in appellant's own district to determine the question of infringement.
Judge Jones, in the instant case, held that the fact that appellant had filed suit in North Carolina five days before the action was commenced in Ohio was not controlling, under the circumstances of the case, and that complete and final adjudication could be had by the real parties in the action before it. He, accordingly, on January 23, 1957, granted the motion restraining appellant from prosecuting the action in North Carolina. Thereafter, on January 25, 1957, appellant filed a motion to rescind the court's order on the ground that it did not have jurisdiction of all the parties and issues that were involved in the North Carolina action, which was supported by affidavits attached to the motion; that the district court, in the North Carolina action, was the first, and only, court having jurisdiction of all the parties involved; that the action had been set for pretrial conference and for trial; and that the order restraining appellant from prosecuting his infringement action operated to deprive him of the legal rights to which he was entitled under the patent laws of the United States. On February 13, 1957, the district court dismissed this motion, stating in its opinion that the motion was nothing more than an additional memorandum in opposition to the motion for the restraining order; that it cited no authority which had not been considered by the court before granting the restraining order; that the court was satisfied that priority in filing was only one of the factors to be considered in the determination of the motion, and deserved no greater weight than should be given to the fact that all issues involved could be decided in the District Court in Ohio, while all such issues could not be decided in the North Carolina suit.
On March 9, 1957, appellant renewed his motion to rescind the order of the court restraining him from prosecuting the action in North Carolina, supported, as he claimed, by newly discovered evidence consisting of the deposition of appellee's sales agent, which referred to twenty-five letters and also communications between appellee and its sales agent in North Carolina, all of which were produced through the subpoena of the sales agent, that was caused to be issued by appellant. It appears that all but two of...
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