Opinion
Automobile collision case in which certain defendants filed motions to dismiss, and a defendant filed a motion to expunge and for further answers to interrogatories. The District Court, Caffrey, J., held that the plaintiff could elect to sue for the same cause of action in two or more fora and reduce one or more of the suits to final judgment but could only obtain satisfaction of one judgment for the particular cause of action, and the defendants were not entitled to a dismissal although the plaintiff had brought a suit predicated on the same facts in a state court, and that an answer expressed in a negative fashion rather than in a direct, responsive and affirmative manner, as called for by an interrogatory, would be stricken and further answer required.
Order in accordance with opinion.
John M. Hall, Choate, Hall & Stewart, Boston, Mass., for plaintiff.
Harry B. White, Boston, Mass., for defendants Jordan.
Andrew Goodspeed, Boston, Mass., for defendant Mazzone.
Paul R. Frederick, James A. Parrish, Boston, Mass., for defendants Cash, Lucas and Goldoff.
CAFFREY, District Judge.
I. On Motion to Dismiss of Defendants John P. Jordan and Peter J. Jordan
The defendants John P. Jordan and Peter J. Jordan have filed a motion to dismiss based on the allegation that the plaintiff has instituted an action against them in the Superior Court of Suffolk County, Commonwealth of Massachusetts, predicated upon the same facts as the instant case, and that, therefore, plaintiff has brought two suits for the same cause of action. Since it is well established that a plaintiff may elect to bring suit for the same cause of action in two or more fora, and that a plaintiff may reduce one or more of these suits to final judgment but may only obtain satisfaction of one judgment for a particular cause of action, it is clear that grounds stated in this motion afford no basis on which to successfully predicate a motion to dismiss. The motion is denied.
II. On Motion to Dismiss of Defendant Peter J. Jordan
The defendant Peter J. Jordan has filed a separate motion to dismiss this action on the ground that the complaint fails to state a claim against him upon which relief can be granted. Paragraph 13 of Count 3 of the complaint alleges that ‘ the motor vehicle (involved in this accident) * * * was owned by his father, this defendant Peter J. Jordan, and was being operated by the said John P. Jordan with the full knowledge, authority, consent and approval of this defendant Peter J. Jordan; that by reason thereof this defendant is responsible for the actions of said John P. Jordan as aforesaid.’ In support of the motion defendant contends that this Count is defective in that it fails to allege that the automobile was registered in the name of Peter J. Jordan.
It is abundantly clear that the quoted language in Paragraph 13 sets forth allegations which if proved would establish the liability of Peter J. Jordan to the plaintiff in the instant case. The motion is denied.
III. On Motion of Defendant John P. Jordan to Expunge and for Further Answers
Defendant John P. Jordan has filed a motion to expunge and for further answers to interrogatories numbered 7, 13, 15, and 16.
As to Number 7, the words ‘ negligently and at an excessive rate of speed’ are stricken, since they are statements of a conclusion.
As to Number 13, the answer filed is stricken as non-responsive.
As to Number 15, the answer ‘ See answer to Interrogatory 13’ is stricken as non-responsive.
As to Number 16, the answer filed is stricken for the reason that it is expressed in a negative fashion rather than in a direct, responsive, and affirmative manner as called for by the interrogatory. The plaintiff will file further answers to defendant John P. Jordan's interrogatories numbered 7, 13, 15, and 16.