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LYNN v. SMITH

May 2, 1961

Robert E. LYNN and Alicia J. Lynn, Plaintiffs,
v.
William F. SMITH, John E. Young, Charles Benedict, Henry J. Danielson, J. Regis Thompson and Charles Anthony, Defendants



The opinion of the court was delivered by: WILLSON

This civil action was once dismissed by this court on the record as it existed at the end of the pre-trial conference. My reasons for the dismissal are found in 178 F.Supp. 866. The dismissal was reversed by the Court of Appeals. Its opinion is found in 281 F.2d 501. Thereafter the case came on for trial before a jury. During the trial of the case the cause of action of Alicia J. Lynn, one of the plaintiffs, was dismissed because the pleadings and the proofs disclosed to a legal certainty that this plaintiff never was entitled to recover the minimum required jurisdictional amount. It should be mentioned here also that defendant, William F. Smith, had died prior to trial and as there was no substitution of his personal representative, the action was dismissed as to him by agreement of counsel.

On November 16, 1960, the jury returned a verdict in favor of the plaintiff, Robert E. Lynn, and against but three of the five defendants remaining in the case. Pursuant to the verdict, judgment was entered in favor of Robert E. Lynn, the plaintiff, and against defendants, John E. Young, Charles Benedict and Henry J. Danielson, in the sum of $ 2,100. Pursuant to the provisions of 28 U.S.C.A. ┬ž 1332, effective July 25, 1958, this civil action having been commenced March 2, 1959, the plaintiff having been adjudged to be entitled to recover less than the sum or value of $ 10,000, and there being no setoff or counterclaim involved, plaintiff was denied costs and in addition, all the record costs were imposed against the plaintiff.

 The case is now before me on post trial motions filed by both plaintiff and defendants.

 Plaintiff's Motion for New Trial

 Plaintiff filed a timely motion for a new trial assigning five reasons as follows:

 'The verdict was inadequate.

 'The learned trial judge erred on the law.

 'The learned trial judge erred in rulings on the evidence.

 'The learned trial judge erred in his charge to the jury.

 'The charge of the learned trial judge to the jury was prejudicial to the plaintiffs.'

 It is not believed that the motion filed is in accordance with Rule 7 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Rule 7(b) states that '* * * a motion shall state with particularity the grounds therefor. * * *' Moore Federal Practice, Vol. 6, at page 3844 indicates that a motion '* * * must state with particularity the grounds therefor. * * *'; and it is noticed that Rule 50 relating to motions for directed verdicts requires that specific grounds be stated. The instant motion as filed is insufficient to raise any issues. Particularly is this so in the instant case because plaintiff has not had the trial record transcribed nor even favored the court with a brief. From the generality of the reasons for a new trial as submitted by plaintiff's counsel, it is not believed that this court is required to search its memory and the record in an endeavor to acquaint itself with the alleged errors in the trial of the case. In any event, because of the rulings made upon defendants' motions which will be hereinafter discussed, plaintiff's motion for a new trial will not be granted.

 Defendants' Motion for Judgment N.O.V.

 At the close of the evidence, the defendants moved for a directed verdict raising the issue that all the evidence was insufficient in law to form a basis for a verdict for the plaintiff, and for the further reason that the case never did actually involve the jurisdictional amount required in diversity cases. After careful consideration of the evidence and the law, this court has come to the conclusion that the defendants are right in both instances.

 Because of the published opinions, it seems unnecessary to again detail the facts introduced in evidence at the trial of this case. The issues at trial were the same as indicated in the complaint and in the plaintiff's pre-trial narrative statements, both the original and the amendment thereto. Plaintiff's contention was that the three supervisors of Pittsfield Township, Warren County, Pa., that is defendants Smith, Young and Benedict, and also defendant Danielson, a private citizen, maliciously and without probable cause, intending to injure the plaintiff, Robert E. Lynn, did, on or about June 13, 1956, cause an information to be made and sworn to by the said Benedict, charging that plaintiff, Robert E. Lynn, did wilfully and maliciously '* * * take and carry away a certain ornamental concrete erection in a public ...


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