Thermex Co. v. Lawson, 4729.
| Decision Date | 04 November 1938 |
| Docket Number | No. 4729.,4729. |
| Citation | 25 F. Supp. 414 |
| Parties | THERMEX CO. v. LAWSON |
| Court | U.S. District Court — Eastern District of Illinois |
Lawrence C. Kingsland, Edmund C. Rogers, and Estill E. Ezell, all of St. Louis, Mo., for plaintiff.
Jean P. Drury, of East St. Louis, Ill., for defendant.
Since the case is still in the pleading stage it would seem that in view of the provisions of Rule 86 it should be governed by the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, even though the complaint and the motion to dismiss were filed prior to the effective date (September 16, 1938) of said rules.
Under the new rules a suit is not subject to be dismissed on the ground that it is in form a suit in equity whereas it should have been brought as a suit at law. Provision is made for only one form of civil action, whether in law or equity. Rule 2, Federal Rules of Civil Procedure, 28 U. S.C.A. following section 723c. The grounds upon which a complaint may be dismissed upon motion are set forth in Rule 12, Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c. Furthermore, the complaint seems to state a case for equitable relief.
I think it cannot be said from the face of the complaint and from defendant's affidavit in support of his motion to dismiss that the jurisdictional amount is not in controversy in view of the alleged involvement of the good will of the plaintiff's business.
The fact that the complaint is not verified is not important under the new rules as long as the prayer for preliminary injunction is not pressed. In this respect the requirement, heretofore prevailing under Federal Equity Rule 25, 28 U.S.C.A. following section 723, as interpreted in Scheuerle v. Onepiece Bifocal Lens Co., D.C., 241 F. 270, 273, has been modified by the new rules. Rules 11 and 65, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Should the court be asked to grant such interlocutory relief, the plaintiff could not rely upon its unverified complaint as proof but would be compelled to adduce sworn proof. Rule 65(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
Likewise, the fact that no indemnity bond has been given does not require the dismissal of the complaint just because it contains a prayer for preliminary injunction. Rule 65(c) prescribes security for payment of costs and damages to be given by applicant only as a prerequisite of the issuance of a restraining order or preliminary injunction....
To continue reading
Request your trial
-
Bascom Food Products v. Reese Finer Foods, Civ. A. No. 89-1138.
...injunction, and must offer proof beyond the unverified allegations of the pleadings. Arthur Treacher's, supra; Thermex Co. v. Lawson, 25 F.Supp. 414 (E.D.Ill.1938). 15 Section one of the Sherman Act provides, in relevant Every contract, combination in the form of trust or otherwise, or cons......
-
Allens Creek/Corbetts Glen Preserv. V. Caldera
...the standard for a preliminary injunction, and must offer proof beyond the unverified allegations of the pleadings"); Thermex Co. v. Lawson, 25 F.Supp. 414 (E.D.Ill.1938) (plaintiff may not rely upon unverified complaint to preliminary injunction). The fact that plaintiffs never took any ac......
-
John R. Alley & Co. v. Federal Nat. Bank
...became effective was of no moment and that it was necessary to give the notice provided for under the new rules. In Thermex Co. v. Lawson, D.C.Ill., 25 F.Supp. 414, a motion to dismiss a complaint had been filed prior to the effective date of the new rules, but it was held that the further ......
-
Kraus v. General Motors Corporation
...feasible, or would work injustice. I am of the opinion that the new Rules should apply. Wham, D. J., in the case of Thermex Company v. C. F. Lawson, D.C., 25 F.Supp. 414, decided November 4, 1938, stated as follows: "Since the case is still in the pleading stage it would seem that in view o......