Opinion
Suit by the Wisconsin Alumni Research Foundation against Vitamin Technologists, Inc., wherein the defendant filed a motion for an order requiring the plaintiff to file a more definite statement or a bill of particulars amplifying the complaint.
Motion granted in part, and denied in part.
George I. Haight, of Chicago, Ill., Mortimer Kline and Lewis W. Andrews, both of Los Angeles, Cal., and Ward Ross and Frank Parker Davis, both of Chicago, Ill., for plaintiff.
R. Welton Whann and Edwin W. Taylor, both of Los Angeles, Cal., for defendant.
OPINION
McCORMICK, District Judge.
The motion of defendant under Rule 12(e) of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for an order requiring plaintiff to file a more definite statement or a bill of particulars amplifying the complaint is granted as to paragraphs 3, 4, 5, 7a, 7b, 10a, 11a and 11b of said motion. Compliance with this order is required to be made by plaintiff within thirty (30) days from notice of this ruling. Exceptions allowed plaintiff.
The motion of defendant under Rule 12(e) aforesaid, except as to matters covered by order made herein November 29, 1939, is denied as to all other demands other than those required to be answered as hereinabove stated, without prejudice to any available procedure by defendant under the Federal Rules of Civil Procedure. Exceptions allowed defendant.
Information as to evidentiary matters which is obtainable on interrogatories, depositions and discovery under the Federal Rules of Procedure may not be obtained by a bill of particulars under Rule 12(e). Rule 12(e) should be applied in a manner to not unduly expand the pleadings, discovery being the proper method for obtaining information that falls outside the category of ultimate facts, and a complaint in a suit for infringement of patent which meets the requirements of Mumm v. Decker & Sons, 301 U.S. 168, 57 S.Ct. 675, 81 L.Ed. 983, should not be expanded under Rule 12(e) of the Federal Rules of Civil Procedure. E. I. Du Pont De Nemours & Co. v. Du Pont Textile Mills, Inc., D.C., 26 F.Supp. 236; Sure-Fit Products Co. v. Med-Vogue Corp., D.C., 28 F.Supp. 489; Fischback v. Solvay Process Co., D.C., 29 F.Supp. 583.