Opinion
Copyright infringement action by Mary Elizabeth Young, also known as Bettie MacDonald, against Loew's, Inc. On defendant's motion to transfer the action from the jury calendar to the non-jury calendar.
Motion granted.
Arthur Stryker, of New York City, for plaintiff.
J. Robert Rubin, of New York City, (Samuel D. Cohen, of New York City, of counsel), for defendant.
MANDELBAUM, District Judge.
The defendant moves to transfer this action from the jury calendar to the non-jury calendar of this court. This is a copyright infringement suit. Primarily, the plaintiff seeks an accounting of profits and injunctive relief. In each of the three causes of action pleaded, plaintiff alleges that she has no adequate remedy at law. She also demands damages as may be ascertained and determined upon the trial of this action. Plaintiff predicates her right to a jury trial by virtue of this demand for damages.
Where a complaint contains both legal and equitable causes of action, under the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the right to a trial by jury as to the legal cause is preserved. Dellefield v. Blockdel Realty Co., D.C., 1 F.R.D. 689; Elkins v. Nobel et al., D.C., 1 F.R.D. 357. But, the Federal Rules of Civil Procedure have not abolished the distinction between equitable and legal remedies, and such distinctions remain the same as before the adoption of the new rules. It is only the procedural distinctions that have been abolished. Bellavance v. Plastic Craft Novelty Co., D.C., 30 F.Supp. 37, 39. At bar, the complaint is essentially equitable in nature and the demand for damages is merely incidental to the main relief.
The motion to transfer the action to the non-jury calendar is granted. Sheldon v. Noredall Realty Co., D.C., 22 F.Supp. 91, modified on another point, 2 Cir., 95 F.2d 48. The plaintiff has requested that in the event this action is transferred to the non-jury calendar, the Calendar Commissioner be directed to place this action on the calendar in a position determined by the date upon which issue was joined herein. I feel that there is merit to this request but an application for this relief should be made to Judge Knox, Senior Judge of this court, who passes upon all calendar matters.