Opinion
Action by Alan Hynd against Walter McGraw, and others, for breach of contract, and for plagiarism. Defendants moved to dismiss the complaint for misjoinder of claims. The District Court, Conger, J., held that both plaintiff's claims and the defendants were properly joined.
Motion denied.
Spring & Eastman, New York City, for plaintiff.
Coudert Brothers, New York City, Joseph A. McManus, Walter R. Barry, New York City, of counsel, for defendants.
CONGER, District Judge.
Motions by the defendants (1) to dismiss the complaint for misjoinder of claims under Rules 18(a) and 20(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.; (2) in the alternative, to sever the claims; and (3) in the alternative, for an order granting separate trials of each claim, etc.
1. Plaintiff has joined two claims for relief, one for breach of contract against two defendants and one for plagiarism against the same two defendants and two others.
Undoubtedly, these two claims might be joined in one complaint. Rule 18(a), F.R.C.P. However, since there are multiple defendants, Rule 20(a), F.R.C.P., must be complied with in order to have proper joinder of claims. That Rule provides that ‘ * * * All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action * * *.’
Although the plaintiff's claims are not pleaded in the alternative it is plain that there can be only one recovery. It is plain, too, that the claims involve the same transactions and that there are questions common to all defendants. See Hopper v. Lennen & Mitchell, D.C.S.D.Cal. 1943, 52 F.Supp. 319; Callinan v. Federal Cash Register Co., D.C.W.Mo.1942, 3 F.R.D. 177; cf. Carl Gutmann Co. v. Rohrer Knitting Mills, D.C.E.D.Pa.1949, 86 F.Supp. 506.
In view of this disposition the defendants' other requests for relief need not be considered.
Motion denied.
Settle order.