Opinion
Frederick P. Randolph, of New York City, for plaintiffs.
Dean, Fairbank & Hirsch, of New York City, for defendant.
CONGER, District Judge.
I am of the opinion that this motion should be denied.
True, the New Jersey action was commenced first; yet the claim of circumstances which led to the bringing of the New Jersey action was started by the attorney for the plaintiffs herein, when he wrote (March 10, 1938) to the defendant, Eagle Pencil Company, Inc., regarding an alleged infringement by that defendant of the alleged patent right of the plaintiffs.
The plaintiffs have elected to sue the Eagle Pencil Company, Inc., whom they claim, as far as they are concerned, to be the direct infringer. All the matters in dispute between these plaintiffs and this defendant can be adjudicated in this action, including that of an accounting by the said defendant to the plaintiffs, if plaintiffs should be successful.
The Eagle Pencil Company, Inc., is not a party in the New Jersey action.
The plaintiffs have not unduly delayed the commencement of their action. Neither do I find that they have used dilatory tactics in the New Jersey action.
The plaintiff should not be compelled to await the trial of the New Jersey action to have their rights, as between themselves and the Eagle Pencil Company, Inc., determined.
It further appears that this action is on the non-jury reserve calendar of this Court with every prospect of an early trial. There is no indication in the moving papers herein that the New Jersey action may be reached for trial except that the attorney for the plaintiffs states as follows: 'Deponent is also informed that due to shortage of judges in the District of New Jersey, the Pfanstiehl Chemical Company case cannot be reached for a long period of time. ' This statement has not been denied. Under all the circumstances, plaintiffs should have the right to have their case against the defendant Eagle Pencil Company, Inc., tried when reached.