This court in Bradbury v. Dennis, 310 F.2d 73 (10th Cir.), considered the meaning of "collusive" and "improperly" in an assignment case, and discussed the authorities. See also the same case at 368 F.2d 905. The existence of a motive or interest to create diversity is not necessarily fatal as we mentioned at the outset.
See Foman v. Davis, supra, 371 U.S. at 182, 83 S.Ct. 227. The case thus fits within the provisions of Rule 15(c) for relation back since the claim in the amended pleading "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading . . ." See Tiller v. Atlantic Coast Line R.R., 323 U.S. 574, 580-81, 65 S.Ct. 421, 424, 89 L.Ed. 465; Bradbury v. Dennis, 368 F.2d 905, 908 (10th Cir.). The claims of abuse of discretion and of prejudice to Prestress are not convincing. It is true that the amendment was not permitted until the day of the actual hearing.
An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought * * *." Cf. United States v. Aetna Cas. Sur. Co., 1949, 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, 12 A.L.R.2d 444; Bradbury v. Dennis, 10 Cir., 1966, 368 F.2d 905; Staggers v. Otto Gerdau Co., 2 Cir., 1966, 359 F.2d 292; 2 Barron Holtzoff, Federal Practice and Procedure, § 482 at 15 n. 22, 18 n. 27 (1961 ed.). Attorneys' fees were allowed below and are allowed on this appeal. They will be fixed by the District Court upon remand under this Court's mandate. Serbin, Inc. v. Key West Hand Print Fabrics, Inc., 5 Cir., 1967, 381 F.2d 735.
Although a party "is not at liberty to set forth variant statements of his claim or defense unless he is honestly in doubt as to what the evidence will show * *. Rule 8(e)(2) makes it clear that the requirement of honesty in pleading does not force a party to select a single theory to the exclusion of all others if he is not sure of the basis for recovery or defense." Moore, supra, ¶ 8.33, p. 1894; Berry Refining Company v. Salemi, 7 Cir., 1965, 353 F.2d 721, 722; Bradbury v. Dennis, 10 Cir., 1966, 368 F.2d 905, 908; Breeding v. Massey, 8 Cir. 1967, 378 F.2d 171, 178; Austin v. House of Vision, Inc., 7 Cir., 1967, 385 F.2d 171, 172; Michael v. Clark Equipment Company, 2 Cir., 1967, 380 F.2d 351, 352; 1A Wright, Barron Holtzoff, Federal Practice and Procedure § 282, p. 203. Obviously, this is the type of case about which it can properly be said that plaintiff was "honestly in doubt" as to what the evidence would show.
Even if the recovery sought was identical, however, it is well established that a plaintiff may seek alternative theories of recovery, even when only one of those theories could actually bear fruit at trial. See Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1081 (10th Cir. 1999); Smith v. Cashland, Inc., 193 F.3d 1158, 1161 (10th Cir. 1999); Bradbury v. Dennis, 368 F.2d 905, 908 (10th Cir. 1966); FED. R. CIV. P. 8(d). Brown Group cites a recent case from the United States District Court for the Northern District of Ohio holding: "Where . . . a plaintiff's CERCLA and state law claims seek recovery of the same response costs, courts have found that CERCLA preempts the plaintiff's right to recover under the state law.
The court therefore finds that for purposes of the statute of limitations, plaintiff's amended complaint does relate back to the filing of plaintiff's original complaint on March 7, 1983, thus not barring plaintiff's claim under RICO, 18 U.S.C. § 1962. See, e.g., Bradberry v. Dennis, 368 F.2d 905, 908 (10th Cir. 1966); Junso Fujii v. Dulles, 224 F.2d 906, 907 (9th Cir. 1955).
It is not available on a common law or equity basis. Quad Construction Inc. v. Smith Contracting Co., 534 F.2d 1391 (10th Cir. 1976); Dennis v. Bradbury, 238 F. Supp. 602 (D.Colo. 1965), aff'd 368 F.2d 905 (10th Cir. 1966); York Plumbing Heating Co. v. Groussman, 166 Colo. 382, 443 P.2d 986 (1968). In the absence of a contract provision, interest is recoverable only in such cases "as are enumerated in the statute."
If a note has a higher interest rate, it will be invalid to the extent that the interest rate is usurious, but will still be enforced at the maximum allowable rate. See Dennis v. Bradbury, 236 F. Supp. 683, 691-92 (D.Colo. 1964), aff'd 368 F.2d 905 (10th Cir. 1966). I must therefore determine which law should be applied here.
Wright Miller, Federal Practice and Procedure: Civil § 1497. See e.g., Matarese v. Moore-McCormack Lines, 158 F.2d 631, 633, 634 (2d Cir. 1946); Bradbury v. Dennis, 368 F.2d 905 (10th Cir. 1966). In the case of Miller Act complaints it is reasonable to conclude that the same contract or bond is equivalent in meaning to the same transaction or occurrence.
A usurious contract is void only to the extent the interest is usurious. Becker v. Marketing Research Consultants, Inc., 526 F. Supp. 166 (D. Colo. 1981); see Dennis v. Bradbury, 236 F. Supp. 683 (D. Colo. 1964), aff'd, 368 F.2d 905 (10th Cir. 1966). Therefore, Brown is entitled to interest at the maximum rate allowable under § 5-12-103, C.R.S. (1987 Cum. Supp.).