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CHICAGO PNEUMATIC TOOL CO. v. ZIEGLER

July 12, 1941

CHICAGO PNEUMATIC TOOL CO.
v.
ZIEGLER



The opinion of the court was delivered by: GANEY

The petitioner filed a petition for a declaratory judgment alleging that the controversy was justiciable under the Declaratory Judgment Act, Title 28, U.S.C.A. § 400, by reason of certain contracts hereinafter referred to, entered into between the petitioner and respondent. An answer was filed to the petition by the respondent together with a counterclaim, and to this answer and counterclaim, the petitioner filed a motion to strike, alleging (1) that the respondent's answer and counterclaim violated Rule 8(a), (b) and (e) 1 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and (2) alleging that certain paragraphs of the counterclaim are irrelevant and immaterial as well as containing evidentiary pleading, and (3) requesting that the respondent furnish a more definite statement as to three paragraphs of her counterclaim, and (4) requesting that twenty days be permitted after the determination of the motion within which to file petitioner's reply to the counterclaim, and (5) such other relief as may be just in the premises.

The petitioner is a corporation, incorporated under the laws of the State of New Jersey, with its principal office located in the City of New York, and whose business is the manufacturing and selling of tools, engines, machines, drills, hammers, etc. The respondent, Louise A. H. Ziegler, is substituted for Anna G. Haeseler, deceased, who was the executrix under the will of Charles H. Haeseler, deceased, who was an inventor. Previous to January 27, 1919 Charles H. Haeseler had certain patents pending and had entered into certain contracts with the petitioner, one of which was a contract of employment dated June 9, 1914; another dated June 9, 1914 related to an application for a patent entitled, "Improvements in Drilling Machines", which eventuated in Letters Patent Serial No. 1,146,870, dated July 20, 1915 and another contract dated January 20, 1917 related to an application for Letters Patent Serial No. 83,470 for pneumatic percussive tool which eventuated in Letters Patent Serial No. 1,240,780 dated September 18, 1917.

 On that date, to wit, January 27, 1919, an agreement was entered into between the petitioner and respondent, designated as Exhibit 1, wherein, the exclusive right to make and sell the several inventions to which the foregoing patents and applications relate, were embodied, and which specifically canceled the contracts aforementioned by so stating and substituting therefor new provisions. Under the agreement, the respondent granted to the petitioner inter alia the exclusive right to make and sell "the several tools, machines and devices embodying the inventions described and claimed in the aforesaid Letters Patent and applications, throughout the United States of America and the territories thereof, and throughout the several foreign countries, to the full end of the terms for which said Letters Patents are or may be granted, in the United States of America and in the several foreign countries, except as hereinafter provided". Further, certain royalties were agreed to be paid by the petitioner to the respondent on the sales of the various tools and machines. The petitioner agreed to keep full and proper books of account showing all the tools, machines and devices sold by it, covered by the Letters Patent, and give to the respondent the right to have access during business hours to examine the same. The petitioner also agreed to forward to the respondent before the fifteenth day of each month a statement showing the number of machines, tools and devices sold during the preceding month, including the date of each invoice of sale, the number of tools sold, the total amount of the sales and the parties to whom sold. The petitioner agreed to pay to the respondent a minimum royalty of $10,000 for each and every year during the term of the contract to be paid in monthly installments on the first day of each month, such payments to be credited on account of the royalties before referred to. The respondent further agreed not to engage in any other business competitive to the business of the petitioner, and also in the event of his obtaining Letters Patent relating to improvements in the tools, machines, and devices manufactured and sold by virtue of the agreement, he would grant to the petitioner the exclusive right to make and sell such improvements under Letters Patent that were obtained under the terms before set forth.

 The second agreement was entered into between the petitioner and respondent on the 27th day of January, 1921 wherein for a consideration of $2,000 the respondent granted to the petitioner the exclusive right to make, use and sell the portable pneumatic drills under Serial No. 306,533 and Serial No. 314,630 for which applications for Letters Patent had been made; in addition for the same consideration the respondent inter alia granted to the petitioner the exclusive right to make, use and sell "any tools, machines and devices that may be invented by the Licensor during the continuance of the said agreement between the Licensor and Licensee, dated the 27th day of January A.D. 1919, subject to the terms of that agreement, whether or not such tools, machines and devices be of the same class as the particular tools, machines and devices referred to in said agreement, or be improvements thereon". Further, it was agreed that this agreement was to be supplemental to and form a part of the said agreement dated the 27th day of January, 1919.

 The controversy concerns itself with whether or not the terms of the contracts are ended, as it is contended by the petitioner that the last patent specifically identified in the license agreement expired April 30, 1936; and the contention of the respondent is that there are still other patents pending, the last of which will not expire until July 5, 1944. However, this question is not to be passed on under the present state of the record since this is merely a motion to strike.

 Accordingly, considering the allegations set forth in the petitioner's bill as hereinabove indicated, it cannot be said that the answer filed by the respondent is so verbose and prolix and states such evidentiary matter as would make it objectionable under subsections (a), (b), (e) 1. Motions to strike out the whole pleading such as is here requested -- the striking out of the answer in its entirety for irrelevancy and redundancy -- are not favored by the court since where under any possible circumstance, evidence of facts pleaded in the allegations sought to be stricken out, have any bearing on th subject matter of the litigation, the motion will be denied. It may be that here much more is set out than is required to sustain the answer, and yet such cannot be said to be irrelevant or redundant, even though there may be intermingling with necessary averments, expressions and language not strictly speaking necessary. Accordingly, while there may be portions of the answer which contain allegations not absolutely essential, it cannot be said that they are so violative of the rule of procedure which requires short and concise statements, as to fall within its ban.

 However, with respect to the averments of the counterclaim there are gross violations of the rule and accordingly much thereof must be stricken. Request has been made by the petitioner for the striking of certain paragraphs of the counterclaim and these will be disposed of ad seriatim:

 (2) Paragraph 18 is stricken for the same reason.

 (3) Paragraph 19 is stricken for the same reason.

 (4) Paragraph 20 is stricken for the reason that the averments are irrelevant and immaterial to the issue.

 (5) Paragraph 21 is stricken for the same reason as paragraph 20.

 (6) Paragraph 22 is stricken for the same reason as ...


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