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Bulletin No. 28
Subdivision (b)- Enlargement
Southern District of New York
April 21, 1939
Paul Kohloff. et al. v. Ford Motor Company - Civ, 2-442
During the pendency of a motion to quash service of summons as to one of two claims for relief, plaintiff's motion for judgment by default as to the other claim should be denied, even though time to answer has expired.
This is an action for the alleged infringement of two U, S. Letters Patent and seeks the recovery of $6,000,000 (including treble damages).
The complaint was filed in the Office of the Clerk of this Court on March 1, 1939, and on the same day a summons was issued to the Marshal of this District pursuant to Rule 4, Federal Rules of Civil Procedure. Thereafter an amended complaint was filed herein on March 3, 1939, (Rule 15 (a)), and on March 8th, 1939, a copy of the summons, complaint, and amended complaint, were simultaneously served upon the defendant, The last day to answer was, therefore, March 28th, 1939.
The amended complaint set up two causes of action (1) infringement of the patents, and (2) the appropriation of the plaintiff's idea embodied in his patent application.
On March 21, 1939, the defendant, appearing specially, procured and served an order to show cause returnable March 28th, 1939, why the service of the summons as to the second cause of action should not be quashed "on the ground that while it is a purported cause of action wherein the jurisdiction of the federal court is obtained on the ground of diversity of citizenship, yet action is brought in the wrong district." The order to show cause could have been made returnable on the previous motion day, to-wit: March 24th, 1939. The order to show cause contained