decided.: May 26, 1949.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
1. The gist of the action was the validity of the demand for payment of the fine to obtain clearance in 1948. Since the master, in bringing the action, had been acting for the owner and the agents, payment of the fine by the agents did not, we think, render the action moot. The District Court should have allowed the complaint to be amended so that the suit could continue as one for the recovery of the $1,500. Intervention by the agents was permissible under Rule 24(b)(2), Federal Rules of Civil Procedure, 28 U.S.C.A. The District Court had discretion to refuse it, but did not exercise that discretion, basing its determination on a mistaken conclusion that the suit was moot.
2. Absent a showing that the defendant is likely again to repeat the conduct of which plaintiff complains, that part of the action which seeks a declaratory judgment is moot. However, the District Court should allow plaintiffs, should they so request, to amend the complaint to allege facts, if any, showing such a likelihood. See Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515-516, 31 S. Ct. 279, 55 L. Ed. 310; Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331, 334-335, and cases there cited; Walling v. Haile Gold Mines, 4 Cir., 136 F.2d 102, 105, and cases there cited.
Reversed and remanded.
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