Opinion
Action by Sperry Products, Inc., against the Association of American Railroads, to enjoin an alleged infringement of a patent by the defendant association, wherein Harold C. Thorne filed a motion to intervene therein. On plaintiff's motion for leave to take oral depositions before answer.
Order in accordance with opinion.
Fish, Richardson & Neave, of New York City, and Harold F. Watson, of Washington, D. C., for the plaintiff.
Mann, Brown & Cox, of Chicago, Ill., and Melvin H. Coulston, of Washington, D. C., for the defendant.
Harold C. Thorne, of Washington, D. C., intervenor.
MORRIS, District Judge.
The plaintiff seeks to enjoin an alleged infringement of a patent by the defendant association. The defendant filed a motion to dismiss the complaint, challenging the jurisdiction of this Court. Pending action such motion to dismiss, the plaintiff moved the Court to grant leave for the taking of oral depositions before answer. Upon argument had upon that motion, it was insisted by the defendant that the complaint did not aver sufficient facts to show jurisdiction in this Court. Subsequent to the hearing on such motion, the plaintiff filed in this cause a notice of voluntary dismissal without prejudice in accordance with the provisions of Rule 41(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, no answer having been filed in this action. It also appears that a motion has been filed in this cause by Harold C. Thorne, who seeks to intervene herein, and moves that the dismissal of the cause by the plaintiff be set aside. No hearing has yet been had upon that motion.
Without regard to whether or not the dismissal filed by the plaintiff herein is effective to accomplish that result, it will be treated as an abandonment of the motion for leave to take depositions.