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December 1, 1938


The opinion of the court was delivered by: KNIGHT

KNIGHT, District Judge.

On Motion for an Order Vacating the Order Granting the Dismissal of the Action.

After joinder of issue in the action and the interposition by defendant of a counterclaim seeking affirmative relief by way of declaratory judgment, plaintiff's motion for dismissal of the action without prejudice was granted, costs being awarded to defendant.

 Defendant now moves for an order (1) vacating the order granting the dismissal of the action (2) granting leave to file amendments to the defendant's counterclaim, and (3) granting leave to serve interrogatories on plaintiff to be answered by him, and (4) granting leave to defendant to be heard on application for reconsideration of the opinion rendered on the plaintiff's motion to dismiss.

 Defendant has submitted proposed amendments to the counterclaim. These amendments purport to set forth sale of structures and the offering for sale of structures other than the device to which plaintiff's interrogatories were directed. Defendant seeks thereby to show that an actual controversy between the parties exists. Even though there may have been some question as to whether an issue was raised between the parties on the original complaint and answer, it is not seen wherein defendant's proposed amendments would do more than define issues in the original action. The mere fact that there are issues involved does not give defendant the right to require plaintiff to carry a case to conclusion. Whitall-Tatum v. Corning Glass Works, D.C., 11 F.Supp. 338. Defendant's showing of an actual issue between the parties will not support a counterclaim for declaratory judgment where such issue or controversy is determinable under the pleadings other than defendant's demand for declaratory judgment.

 In this case defendant has shown no prejudice resulting from the dismissal of the action. Even were it found that defendant's amendments were sufficient to cure the defects of the demand for affirmative relief, the result would not be changed. In Tower v. Stimpson, C.C., 175 F. 130, the court refused to consider a cross bill filed subsequent to the motion to dismiss. In Houghton v. Whitin Machine Works, C.C., 160 F. 227, the court refused to consider a cross bill praying for a discovery, when the discovery was directed solely to matters of defense to plaintiff's cause of action. Allington v. Shevlin-Hixon Co., D.C., 2 F.2d 747, discloses a request of a third party manufacturer of a device to intervene in a suit against a purchaser of his device, subsequent to the plaintiff's motion for dismissal, the intervenor's petition seeking injunctive relief against plaintiff being based on petitioner's manufacture of the alleged infringing apparatus, his assumption of the defense of the action, and the fact that his business was being interfered with by plaintiff through threats of litigation against intervenor's customers. The court dismissed the petition for intervention, saying [page 749], "the only affirmative relief which Burns has here placed himself in a position to demand is that of immunity from future litigation and its consequences. Hence, as I view it, the affirmative relief here sought is not of a character to take this case out of the general rule under which a plaintiff may, as of course, dismiss his bill without prejudice on payment of costs."

 Motion denied.


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