Opinion
May 1, 1939.
Thomas J. Diviney, of Long Island City, N.Y., for plaintiff.
Bernard G. Nemeroff, of New York City, for defendants.
These are two motions made by the defendants; one, for an order requiring the plaintiff to put all the averments of his claim in numbered paragraphs and that said paragraphs contain a single set of circumstances, and that all causes of action be separately stated and numbered, the other portion of the motion deals with a demand for a bill of particulars; the other motion, that the plaintiff be directed to permit the comparison, copying or photographing by, or on behalf of the defendants, of a model of the alleged new improved packing case which the plaintiff claims to have exhibited to the defendants.
The action is for the unlawful and wrongful appropriation of plaintiff's alleged invention. The complaint consists of about two and a half pages of nine paragraphs excluding the demand for judgment paragraph.
While simplicity is required under the Rules of Civil Procedure for the District Courts of the United States, nevertheless Rule 10(b) expressly provides for the numbering of paragraphs. Rule 10(b), 28 U.S.C.A. following section 723c, reads as follows: "Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth."
The plaintiff will be directed to number the paragraphs. There is but one cause of action set forth in the complaint. This is admitted by the plaintiff in his memorandum submitted on this motion, therefore the motion to separately state and number the causes of action is denied. The plaintiff will be directed to furnish a bill of particulars as to the following: a, b, c, d, h, i, n, o, p, q, and u.
Defendants' motion for an order to permit the comparison, copying or photographing of a model of the packing case is based upon Rule 34. There is no showing of the existence of a model. This must be shown before the motion can be granted. This motion will therefore be denied with leave to renew. Defendants can procure the necessary information concerning the existence of a model by a proper examination under Rule 26(b).
The new Rules are ample to prevent surprise and also to furnish the parties to the litigation with the necessary and essential information in order to prepare for trial.
Motions disposed of as indicated.
Settle orders on notice.