January 14, 1932
ALLIED METAL STAMPING CO., INC.,
STANDARD ELECTRIC EQUIPMENT CORPORATION
Appeal from the District Court of the United States for the Eastern District of New York.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The plaintiff filed a bill in equity in the Eastern district of New York for the infringement of a patent. The defendant in its answer set up a counterclaim against the plaintiff for the infringement of another patent. The plaintiff thereupon moved to dismiss the counterclaim for lack of jurisdiction, on the ground that plaintiff was not shown to have been guilty of the infringement in the Eastern district of New York. This motion the judge granted and dismissed the counterclaim, and the defendant appealed. The case is ruled by our decision in Radio Corporation of America v. J. H. Bunnell & Co., 298 F. 62. Since then the Circuit Court of Appeals for the Sixth Circuit has decided the other way in a substantially similar case, Naivette, Inc., v. Philad Co. (C.C.A.) 54 F.2d 623, May 15, 1931. The question is whether the dismissal for jurisdictional reasons of a counterclaim praying an injunction is a refusal to grant an interlocutory injunction. Jud. Code § 129 (section 227, tit. 28, U.S. Code, 28 USCA § 227). Whatever we might think of this as a new matter, it does not seem to us that the question is so clear as to require us to overrule our former decision.
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