Summary
permitting amendment that gave rise to right to trial by jury
Summary of this case from Time Warner Cable of New York City v. Kline, Davis MannOpinion
John A. Nolan sued the Columbia Broadcasting System, Inc., for injunctive relief and an accounting by reason of an alleged infringing program. After taking a deposition, plaintiff moved for permission to serve an amended complaint. The United States District Court for the Southern District of New York, Weinfeld, J., held that such permission is to be freely given when justice so requires.
Motion granted.
Boyle, Feller, Stone & McGivern, New York City (Alfred H. Wasserstrom, New York City, of counsel), for plaintiff.
Coudert Brothers, New York City (Walter R. Barry, New York City, of counsel), for defendant.
WEINFELD, District Judge.
Motion for permission to serve an amended complaint as proposed is granted. Rule 15(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. provides that such leave shall be freely given when justice so requires.
Plaintiff moved promptly to eliminate its prayer for injunctive relief and an accounting when it discovered during the taking of the defendant's deposition that the alleged infringing program was on a sustaining basis and that the defendant did not gain profits therefrom. It is no sufficient objection to the amendment that its purpose is to secure a jury trial. Certainly defendant's rights are not prejudiced by the granting of this motion. Pallant v. Sinatra, D.C., 7 F.R.D. 293; Fischer & Porter Co. v. Brooks Rotameter Co., D.C., 86 F.Supp. 502; Lieberman v. Merkin, D.C., 2 F.R.D. 315.
Settle order.