Opinion
Action by Simmons Company against Max Cantor and Max Yohr, doing business as Royal Bedding Company, for infringement of a trade-mark and for unfair competition. On defendants' consolidated motions to dismiss the complaint, to strike out certain paragraphs thereof in event of a refusal to dismiss, and for a bill of particulars in case the motions to dismiss and to strike are refused.
Consolidated motions denied.
See, also, 3 F.R.D. 197.
Edward A. Lawrence of Pittsburgh, Pa., for plaintiff.
Green & McCallister, of Pittsburgh, Pa., for defendants.
GIBSON, District Judge.
Counsel for defendants has filed a consolidated motion to dismiss the complaint, to strike certain paragraphs thereof in event of a refusal to dismiss, and for a bill of particulars in case the motions to dismiss and to strike are refused.
Counsel filing said motions is, we think, hypercritical of the amended complaint. It appears to be one which fairly sets forth a cause of action upon infringement of a trade-mark and also for unfair competition. It will be noted that the Rules of Federal Civil Procedure are quite lenient and do not require anything more than ‘ a short and plain statement of the claim showing that the pleader is entitled to relief’ . Rule 8(a), 28 U.S.C.A. following section 723c, other than the grounds of jurisdiction and the prayer for relief.
The matters covered by the motion to strike set forth, in more detail perhaps than is required, matters which will be admissible in evidence, particularly in the unfair competition case.
The motion for a bill of particulars will also be denied. It calls for the complainant's proofs rather than for pleading. In place of what may seem a relaxation of pleading requirements the Federal Rules have provided other means by which the basic facts of the claim may be ascertained. See Rules 30 and 26.