to hold it mandatory upon the court to deny motions for dismissal made after the answer is filed would deprive Rule 12(d) of any operative force in many instances. This section allows a motion to be determined before trial unless deferred by the court.
In the instant case objections to the sufficiency of the complaint were made in the defendants' answer. I think a motion to dismiss for the same reason, filed after the answer, may be considered before trial if it appear fitting to the court that some of the questions raised in the motion should be determined before trial. Rule 12(d). See Young v. Aetna Life Ins. Co., D.C., 32 F.Supp. 389, 391.
Deeming the motion proper in its procedural aspect, we will consider its substantive force.
The plaintiff seeks as one branch of relief to have a pending action in the Common Pleas Court of Philadelphia County, Pennsylvania, enjoined. There is a statutory prohibition against such relief, which is as follows: "The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." R.S. § 720; March 3, 1911, c. 231, § 265, 36 Stat. 1162, 28 U.S.C.A. § 379. There are exceptions other than the one defined, which have been declared to have been within the legislative intent, but the present case does not fall within any recognized exception. In fact, it provides a circumstance very evidently requiring preservation of the independence of the state court. See Smith et al. v. Jennings et al., 5 Cir., 238 F. 48; Tussing et al. v. Central Trust Co. et al., D.C., 34 F.2d 312. Nor will the court allow to be done by indirection what is otherwise disallowed. Therefore, the defendants will not be enjoined from continuing a pending suit in the state court.Nor will the court release the plaintiff from liability to the defendants imposed by a state court. This does not mean, however, that the plaintiff is not free to proceed in this court with the remainder of the litigation, at least until a judgment is obtained either in this court or in the state court which may be set up as res adjudicata in the other court. Princess Lida v. Thompson, 305 U.S. 456, 59 S. Ct. 275, 83 L. Ed. 285; Penn. Gen. Cas. Co. v. Pennsylvania, 294 U.S. 189, 55 S. Ct. 386, 79 L. Ed. 850. The availability of the other relief sought by the plaintiff is properly before this court.
If the plaintiff proves the allegations of the complaint, it may be entitled to reformative relief by a rescission of the disability and double indemnity provisions of the policy. Ruhlin v. The New York Life Ins. Co.; the course of this case can be followed through: 3 Cir., 93 F.2d 416; 302 U.S. 681, 58 S. Ct. 408, 82 L. Ed. 526; 304 U.S. 202, 58 S. Ct. 860, 82 L. Ed. 1290; D.C., 25 F.Supp. 65; 3 Cir., 106 F.2d 921. A complaint shall not be dismissed for insufficiency except where it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim. Leimer v. State Mut. Life Assur. Co., 8 Cir., 108 F.2d 302.
An issue of fact has been raised by the pleadings relative to fraud in the procurement of the policy. The defendants' motion cannot, therefore, be given effect as one for judgment on the pleadings. Caterpillar Tractor Co. v. International H. Co., 9 Cir., 106 F.2d 769; Interstate Commerce Commission v. Frye, D.C., 26 F.Supp. 393.
The motion to dismiss is denied, with effect to be given to the qualifications noted.
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