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BARR RUBBER PRODS. CO. v. SUN RUBBER CO.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.


August 11, 1965.

The Barr Rubber Products Company
v.
The Sun Rubber Company.

The opinion of the court was delivered by: FEINBERG

Memorandum

FEINBERG, District Judge: Plaintiff The Barr Rubber Products Company ("Barr") moves (1) for summary judgment, (2) to add two parties defendant, (3) to take further depositions, and for related relief. Barr is suing The Sun Rubber Company ("Sun") for a declaratory judgment that United States Patent No. 2,629,134, issued to Sun in 1953, is invalid or, if valid, is not infringed by Barr. The complaint also alleges unfair competition and antitrust violations by Sun for which Barr seeks damages. According to the complaint, the patent in suit ("the Molitor patent") "relates to a process of producing hollow articles of a rubbery plastic, namely, plasticized vinyl resin, by the rotational casting of a liquid mixture of the unplasticized resin powder and a liquid, non-volatile plasticizer therefor, said mixture being commonly known as a vinyl plastisol." Complaint, para. 4. The Molitor patent is used in the production of balls, dolls, toys and other types of hollow flexible articles.

The motion for summary judgment seeks a declaration that even if the Molitor patent is valid and was infringed, it is unenforceable because of patent misuse by Sun. Barr relies on such cases as Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 86 L. Ed. 363, 62 S. Ct. 402 (1942) and B. B. Chemical Co. v. Ellis, 314 U.S. 495, 86 L. Ed. 367, 62 S. Ct. 406 (1942). However, the papers make clear that, putting aside all other legal contentions urged by Sun, there are genuine issues as to material facts remaining unresolved. E.g., assuming that there was misuse of the Molitor patent, has this conduct stopped and have its consequences been dissipated? Therefore, the motion for summary judgment is denied.

 The motion to join parties is made under Rule 20 of the Federal Rules of Civil Procedure and seeks to join McNeil Corporation and B. F. Goodrich Company. The motion for additional discovery lists nineteen proposed deponents. The motions are made some four and one-half years after commencement of the action in November 1960 and after over 6,000 pages of deposition testimony have been taken. On August 3, 1964, Chief Judge Ryan directed that all pre-trial discovery be completed prior to August 17, 1964, and, on December 4, 1964, struck Barr's objections to a note of issue filed by Sun. At that time, Barr apparently did not raise the issue of joining additional defendants. On December 4, 1964, the action was assigned by the Chief Judge to me as a Rule 2 case. Since that time, there have been a series of pre-trial conferences, and substantial additional discovery has been allowed because, under the circumstances as they were presented to me, it seemed appropriate to modify the August 3, 1964 order. The parties were advised shortly after the case was assigned to me that a trial would probably he held this fall and, more recently, a tentative trial date in December was set.

 Judging from what has transpired to date in this bitterly contested litigation, I have no doubt at all that adding two parties defendant now would delay the trial for years. Moreover, at this late date the request is unjustified. Therefore, in the exercise of my discretion, that motion will be denied. Similarly, the request for additional discovery of the magnitude sought is quite capable, unless carefully controlled, to result in unwarranted delay of the trial. While a substantial portion of the delay in bringing this case to trial was attributable to Sun's contesting venue after the complaint was filed, nevertheless, over a year has gone by since the note of issue was filed. On the other hand, some of the requests for depositions are based on information only recently acquired by Barr. However, the trial now scheduled for December should not be further delayed. Accordingly, therefore, in the exercise of the court's discretion, Barr will be allowed to take additional depositions provided that they are completed within sixty days from the date hereof. Knowing of this condition, Barr is to make the determination as to which of the suggested nineteen deponents are to be eliminated, and local, as well as trial counsel, should be used, if necessary, to conduct simultaneous depositions. All depositions are to be taken in a United States courthouse where practical, unless otherwise agreed to by the parties, and shall be governed by the conditions set forth in paragraphs four and five of my memorandum opinion dated June 24, 1965, except that refusals to answer in a deposition taken in another city shall, as soon as practical, be taken before the appropriate United States district judge for a ruling instead of to me.

 Accordingly, the motions for summary judgment and joinder of parties defendant will be denied; the motion to take further depositions and for related relief will be granted on the conditions stated herein. The already scheduled pre-trial conference of September 20, 1965 will be postponed until October 11, 1965, at the same time and place, when the sixty-day period for completion of discovery will have expired. Prior to that date, counsel (both trial and local) are directed to confer to work out a pre-trial order dealing, inter alia, with the matter covered in the respective drafts previously prepared by them. The conference on October 11, 1965 is to be attended by trial and local counsel.

 So ordered.

19650811

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