itself sets forth the underlying test. An examination of cases decided under the Rule demonstrates that the tests outlined therein by the various courts substantially constitute a restatement of the Rule itself even though sometimes couched in different words. See 1 Barron and Holtzoff § 448 (Rules Ed. 1950). It seems to us that any new claim, if such exists, created by the proposed amendment to paragraph 15 is one which, at least, 'arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading'. Therefore, the proposed amendment to paragraph 15 should be allowed whether or not it be treated as creating a new claim for relief. Defendants had notice of the general nature of the claim asserted, the general wrong suffered, and the general conduct causing this wrong. For these reasons, we conclude that the defendants will not be prejudiced by an allowance of the amendment to paragraph 15.
The proposed amendment to paragraph 22(i) must also be allowed for the reason that it represents merely a change in a factual allegation without changing the general claim or claims for relief asserted. However, even if the amendment to paragraph 22(i) be treated as stating a new claim for relief, we conclude that this amendment should be allowed for the reasons set forth above in passing on the same question with respect to paragraph 15.
Plaintiff's general claim for relief is set forth in paragraph 21 of the complaint which reads as follows: '21. On information and belief, defendant Mine Safety, and the individual defendants who were officers and directors thereof, pursuant to a plan and conspiracy, acquired control of defendants Carbon Monoxide and Catalyst Corporation and operated the same as mere instrumentalities to enable defendant Mine Safety to use the assets and powers of defendants Carbon Monoxide and Catalyst Corporation, without cost or risk to itself, and for its own benefit, gain and advantage; to acquire the exclusive rights in any patents which resulted from research by defendants Carbon Monoxide and Catalyst Corporation and thus to advance the interests of defendant Mine Safety to the damage, loss and detriment of defendants Carbon Monoxide and Catalyst Corporation and to the minority stockholders thereof.'
Paragraph 22(i) is merely a specific factual allegation tending to establish the general claim for relief outlined in paragraph 21. The allegation in paragraph 22(i) is an unnecessary one since under the Federal Rules of Civil Procedure a complaint need not state facts sufficient to constitute a cause of action but need only allege a claim upon which relief can be granted. Asher v. Ruppa, 7 Cir., 1949, 173 F.2d 10; Dioguardi v. Durning, 2 Cir., 1944, 139 F.2d 774; Continental Collieries, Inc., v. Shober, supra; Shapiro v. Royal Indemnity Co., D.C.W.D. Pa. 1951, 100 F.Supp. 801; Osborn v. Engleman, D.C.W.D. Mo. 1949, 85 F.Supp. 228; F. E. Myers & Bros. Co. v. Goulds, D.C.W.D.N.Y. 1946, 5 F.R.D. 132; Camrel Co. v. Skouras Theatres Corporation, D.C.D.N.J. 1944, 57 F.Supp. 811.
Therefore, it would have been proper for plaintiff to attempt to establish, at the trial of this case, the facts originally alleged in paragraph 22(i) of the complaint in an effort to prove the claim for relief set forth in paragraph 21 even though no specific allegation had been made. Although the proposed amendment to paragraph 22(i) would constitute a change in this factual allegation, it would not constitute a change in the claim for relief set forth in paragraph 21; but, on the contrary, it would fall within the scope of that claim for relief. Since plaintiff could have attempted to establish at the trial of the case one of these sets of facts without a specific allegation to that effect and since the claim for relief is not changed, it seems to us that the defendants cannot be prejudiced by the allowance of this amendment to paragraph 22(i). All that the proposed change to paragraph 22(i) will do is to relate that factual allegation to a different phase of the claim for relief asserted in paragraph 21. If the claim alleged in paragraph 21 did not relate to a diversion of profits from both Carbon Monoxide Eliminator Corporation and Catalyst Research Corporation, the result might well be different.
Finally, defendants argue that neither of these amendments should be allowed for the reason that it will require a change in evidentiary plans on the eve of trial. Since it seems to us that no new claim for relief is alleged by these proposed amendments for the reasons indicated heretofore, we feel that little change in evidentiary plans will be necessary and inasmuch as the defendant had notice of the proposed amendments on August 24, 1951 and the trial has been postponed until January 7, 1952, we do not believe that an allowance of the proposed amendments will prejudice the defendants on this ground.
The petition for leave to intervene remains for disposition. A similar motion to intervene filed on behalf of the same petitioners was denied with prejudice to renew the same by Judge Marsh of this Court in an order dated February 23, 1951, and this order was affirmed, per curiam, by the Court of Appeals, 3 Cir., 190 F.2d 675.
Consequently, this order constitutes the rule of the case in this respect and the Court, at this time, should consider only circumstances which have arisen since the date of the order denying the petition. U.S. v. Davis, D.C.S.D.N.Y. 1933, 3 F.Supp. 97. Petitioners have argued that two such new matters support their position. First, they contend that plaintiff's objections to intervention are nullified by the fact that the United States has served notice on the parties to the effect that the United States interposes no objection to the motion for leave to intervene; and second, they argue that the fact that the plaintiff filed the motion for leave to amend the complaint at this late date shows that the petitioners' rights are inadequately protected.
It seems obvious that the first item can have no bearing whatsoever on the intervention, and inasmuch as we have granted the plaintiff's motion, we feel that the second item, standing alone, is not sufficient to show that petitioners' rights are inadequately represented. Furthermore, it may be noted that Rule 23(b) (1) requires that a plaintiff in a stockholders's derivative action be 'a shareholder at the time of the transaction of which he complains or that his share thereafter devolved on him by operation of law'. This requirement is equally applicable to intervenors. Winkelman v. General Motors Corporation, D.C.S.D.N.Y. 1942, 44 F.Supp. 960. See 2 Barron and Holtzoff § 568 (Rules Ed. 1950).
Although petitioners did not become stockholders until about three years after the complaint in this case was filed, they appear to contend that they should be allowed to intervene at this time since the claim for relief asserted in the complaint is a continuing one and that therefore they will satisfy the requirement of Rule 23(b)(1) at least as to that portion of the claim arising after the purchase date of their stock. Even though petitioners' contention be treated as correct, which we do not now decide, we conclude that the petition should be denied for the reason that permission to intervene for a portion of the claim only would tend to create confusion at the trial. For this and other reasons set forth heretofore, we hold that the petition for leave to intervene filed on behalf of Vladimir Behr and Anne Livingston Behr must be denied.
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