Summary
noting that the Federal Rules of Civil Procedure "contemplate a disposition of all issues between litigants in a single law suit," whether alleged in the alternative or hypothetically and whether or not consistent with one another
Summary of this case from Lawser v. Poudre School District R-1Opinion
Action by Rose Lader against Bror G. Dahlberg. On plaintiff's motion for an order permitting her to serve a second amended complaint.
Motion granted.
N. William Welling, of New York City, for plaintiff.
Isidore J. Kresel, of New York City, for defendant.
MANDELBAUM, District Judge.
The plaintiff moves for an order permitting her to file and serve a second amended complaint. The objections are based primarily on the contention that the additional cause of action sought to be pleaded by the plaintiff is insufficient in law. Second, that the defendant will be prejudiced by the granting of this application since it has waived its right to a jury trial, and it is seriously questioned whether the defendant may obtain a jury trial on the amended bill of complaint.
I have carefully examined the papers and it is my belief that the application should be granted. I think that the New Rules of Civil Procedure contemplate a disposition of all issues between litigants in a single law suit. It is immaterial that two or more claims may be stated alternately or hypothetically. It is also immaterial whether these claims are consistent or based on legal or equitable grounds. Rule 8(e)(2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
The claim that the defendant will not now be able to obtain a jury trial also appears to be without merit. First, the plaintiff in its memorandum has consented that a jury trial be granted, if the defendant should desire one. Second, irrespective of such consent, it has been held that the subsequent filing of a supplemental complaint and answer followed by a timely demand for trial by jury entitles the defendant to trial by jury as to such issues raised by the supplemental complaint and answer. See Waldo Theatre Corp. v. Joseph Dondis et al., D. C. District of Maine, Southern Division, 1 F.R.D. 685.
The fact that the new cause of action sought to be pleaded may be insufficient in law is at the moment no ground for refusing to permit the interposition of such new cause of action. That question can be tested on a separate application. Considering this matter in its entirety, I am of the opinion that the interests of justice will be best served if this application is granted.