Thompson v. Automatic Fire Protection Co.

• Decision Date: 12 February 1907
• Citation: 151 F. 945
• Parties: THOMPSON v. AUTOMATIC FIRE PROTECTION CO. et al.
• Court: U.S. District Court — Eastern District of New York

151 F. 945

THOMPSON v. AUTOMATIC FIRE PROTECTION CO. et al.

United States Circuit Court, E.D. New York.

February 12, 1907

Duncan & Duncan (Frederick S. Duncan, of counsel), for complainant.

Griggs Baldwin & Pierce (Martin Conboy, of counsel), for defendant Automatic Fire Protection Company.

CHATFIELD District Judge.

This is a motion made by the complainant to amend its bill of complaint by inserting a clause to the effect that the subject-matter in dispute exceeds, exclusive of interest and costs, the sum of $2,000. The action is one in equity, for the specific performance by the defendant Shipman of an alleged contract to assign certain inventions and patent rights to the complainant, and for other relief.

The complainant filed a bill in November, 1906, in the Eastern district of New York, and on the December rule day the defendant the Automatic Fire Protection Company filed a general appearance. It subsequently filed a demurrer, setting forth, first, that the court was without jurisdiction because the bill did not allege that the amount involved exceeded the sum of $2,000; and, second, that if appears from the bill that the complainant is a citizen and resident of the state of New Jersey, and one defendant, the Automatic Fire Protection Company, is a citizen and resident of the state of Maine, and that the bill is therefore brought in a district of which neither the complainant nor defendant is a resident.

The complainant, admitting the defect claimed as the first ground of demurrer, obtained an order directing the defendant corporation to show cause why the bill of complaint should not be amended under equity rule No. 29. The complainant cites many cases substantiating the general proposition that where the record of the case, up to the time of the motion shows jurisdiction in the particular court, but there is a defect in the allegations of the pleadings with relation to the setting forth of the grounds of that particular jurisdiction, amendment will be allowed upon motion. This may occur either before or during the taking of evidence. In the case at bar the allegation in the moving affidavits as to the amount involved is not controverted, and the record therefore now shows a subject of controversy exceeding in value the jurisdictional sum of $2,000. The cases of Whalen v Gordon, 95 F. 305, 37 C.C.A. 70; Bowden et al. v Burnham et al., 59 F. 752, 8 C.C.A. 248; Carnegie, Phipps & Co. v. Hulbert et al., 70 F. 209, 16 C.C.A. 498; Carr v. Fife (C.C.) 45 F. 209; Id., 156 U.S. 494, 15 Sup.Ct. 427, 39 L.Ed. 508; Robinson v. Suburban Brick Co, 127 F. 804, 62 C.C.A. 484; Clausen v. American Ice Co. (C.C.) 144 F. 723-- support the proposition that an amendment should be allowed. In Continental Insurance Co. v. Rhoads, 119 U.S. 237, 7 Sup.Ct. 193, 30 L.Ed. 380, the Supreme Court not only seems to recognize the rule, but directs that the case be remanded to the Circuit Court, in order that an opportunity may be given to the complainant to amend his complaint. Halstead v. Buster, 119 U.S. 341, 7 Sup.Ct. 276, 30 L.Ed. 462, and Denny v. Pironi, 141 U.S. 121, 11 Sup.Ct. 966, 35 L.Ed. 657, approve of the doctrine that a pleading may be amended even after an appeal to the Supreme Court of the United States.

The defendant corporation cites three cases in opposition to the application, one of which (Oleson et al. v. Northern Pacific Ry. Co. (C.C.) 44 F. 1), after holding that the bill of complaint should aver that the value of the matter in controversy exceeds $2,000, if the jurisdiction of the court depends upon diversity of citizenship, and therefore...