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TRICO PRODS. CORP. v. E.A. LABS.

January 29, 1944

TRICO PRODUCTS CORPORATION
v.
E.A. LABORATORIES, Inc.



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This case comes before the Court on several motions. Defendant moves:

1. Motion made on behalf of the defendant that the accounting and all proceedings or matters in or relating thereto be dismissed for want of prosecution on the part of the plaintiff, or for such other or further reasons as may be deemed appropriate.

 2.That the supplemental bill of complaint in the above entitled action, which bill of complaint was attached to an order to show cause signed by Judge Inch on May 7, 1936, be dismissed on the ground of laches, failure of prosecution under Rule 24 of this Court, or for such other reasons as may be deemed appropriate.

 3. That the motion to punish for contempt, attached to the order to show cause signed by Judge Galston and filed on March 4, 1935, and referred by Judge Campbell to the Master John L. Lotsch by an order dated April 17, 1935, and the subsequent report filed by the Master John L. Lotsch November 13, 1935, be dismissed for laches, failing to prosecute or for such other reason as may be deemed appropriate.

 4. Defendant further moves for such other, further and different relief which the court may deem just, proper and appropriate.

 Plaintiff moves:

 5. This court to appoint a successor to Special Master Frederick R. Crane to take and state an account of the profits, gains, savings or advantages which said defendant has made or derived by reason of the infringement, as well as the damages which plaintiff has sustained by reason of said infringement as set forth in the decree on mandate.

 The plaintiff does not oppose the granting of defendant's motions 2 and 3, that is, for dismissal of the supplemental bill of complaint, and for dismissal of the motion to punish for contempt, and they are granted.

 This leaves for consideration defendant's motion 1 for dismissal of the accounting proceedings, and plaintiff's motion 5 for the appointment of a substituted Master as the successor of Special Master Frederick R. Crane, deceased.

 As the same facts will of necessity be referred to in the consideration of motions 1 and 5 I will consider them together.

 On October 30, 1934, John L. Lotsch was appointed Special Master to take and state an account of profits.

 On December 8, 1934, the Master ordered defendant to take and file with the Master a verified account "which shall show the extent of infringement by defendant of claims 1, 2, 3 and 4 of the Garratt Patent No. 1,434,655." On December 26, 1934, the defendant duly filed its statement showing Net proceeds ...


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