The facts alleged in the amended complaint must be accepted as true so far as the motion to dismiss is concerned. As stated, the facts appear to indicate a waiver by defendant Rohrer Knitting Mills, Inc., of this requirement of the agreement. The motion to dismiss for this reason must therefore be refused.
We are not here interested in the proof of the claim. We are concerned solely with the question as to whether the amended complaint states any claim against the defendant upon which relief can be granted. The motion to dismiss for failure to state a claim should be denied if it is reasonably conceivable that within the allegations of the amended complaint evidence may be introduced and received which will support the grant of any relief in the plaintiff's behalf.
The amended complaint avers, inter alia, 'The aforesaid Agreement was made by the parties thereto for good and valuable consideration.' The agreement itself, which was executed in Pennsylvania and must therefore be interpreted under the law of Pennsylvania,
is completely silent on the matter of consideration. The law in Pennsylvania appears to be well settled that if no consideration is expressed it does not contradict the writing to permit the consideration to be orally proved.
Furthermore, plaintiff contends that under Rule 8(c) of the Federal Rules of Civil Procedure the defense of lack of consideration is designated as an affirmative defense and that such defense may be raised only by answer. On either hypothesis, that is as to whether the defense of failure of consideration is substantive or procedural, both under the law of the State of Pennsylvania and Rule 8(c) of the Federal Rules of Civil Procedure, it is not under the amended complaint as stated a matter that can be summarily brushed off by a motion to dismiss.
As to defendants' contention in regard to the fourth cause of action, namely:
1. The Court lacks jurisdiction because no diversity of citizenship exists between plaintiff and one of the essential parties, namely, Warr-Ell Mills, Inc.
2. Plaintiff cannot maintain an action against defendant Rohrer Knitting Mills, Inc., for breach of contract and in the same proceeding maintain an action against defendant Rohrer Knitting Mills, Inc., and its four officers for conspiring to induce said breach.
There is no merit in either of these contentions.
As to the first: The amended complaint does not indicate the residence of Warr-Ell Mills, Inc. In its motion to dismiss, defendant avers that it is a resident of the State of New York and therefore no diversity exists in relation to the residence of plaintiff, also a resident of the State of New York. However, assuming the existence of the diversity, there is nothing in the pleadings to indicate the indispensability of this named defendant. Plaintiff has exercised its acknowledged prerogative to elect among joint tort-feasors which to sue.
It has elected not to sue Warr-Ell Mills, Inc.
As to the second: Rohrer is not named as a defendant in this count. The claim here is against Argo Knitting Mills, Inc., and the four individuals who are the stockholders and officers of both Rohrer Knitting Mills, Inc., and Argo Knitting Mills, Inc.
Rule 18(a) of the Federal Rules of Civil Procedure provides as follows: 'The plaintiff in his complaint or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party. There may be a like joinder of claims when there are multiple parties if the requirements of Rules 19, 20, and 22, are satisfied. There may be a like joinder of cross-claims of third-party claims if the requirements of Rules 13 and 14 respectively are satisfied.'
Rule 20(a) of the Federal Rules of Civil Procedure provides, inter alia, as follows: ' * * * All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.'
The prayer in the fourth cause of action of the amended complaint is directed against other defendants than the one named in the first, second and third causes of action. The relief sought is not in the alternative but rather cumulative. Evidence that would sustain the first three causes would not necessarily sustain the fourth. This is not a case where plaintiff alleges a single cause of action but is uncertain as to which of two or more defendants may be liable. Here, while arising out of the same transaction, occurrence, or series of transactions or occurrences, the gravamen of the complaint is not the doing or failing to do a single act by one or more persons, but rather the doing of entirely separate and distinct acts, in the one instance by one corporation and in the other instance by another corporation and four individuals. This is not the alternative situation contemplated by the Rule.
As to the first, second, and third causes of action, motion to dismiss is denied and defendant is directed to file an answer within twenty days from the date of the service of this Order.
As to the fourth cause of action, motion to dismiss is granted.