Opinion
Action by Franz Von Mailath and wife against Order of the Daughters of the Divine Redeemer, a corporation. On defendant's motion to require plaintiffs to reply to defendant's answer, the District Court, Burns, J., held that discretion to require such reply should not be exercised in view of doubt as to whether such reply would eliminate the necessity of, or adequately substitute for, other discovery proceedings.
Motion denied.
Thomas W. Pomeroy, Jr., Kirkpatrick, Pomeroy, Lockhart & Johnson, of Pittsburgh, Pa., for plaintiff.
J. Paul Farrell, William H. Eckert, Smith, Buchanan & Ingersoll, of Pittsburgh, Pa., for defendant.
BURNS, District Judge.
Both parties agree that this court has discretion to require plaintiff to file a reply to the answer of defendant. The issue is whether the circumstances alleged in the answer of defendant are such as to warrant the exercise of discretion.
It is my belief that, in so far as possible, the development of facts in pretrial proceedings should be accomplished under the provisions of the rules providing for discovery, depositions, interrogatories and the like. Fed.Rules Civ.Proc. rule 26 et seq., 28 U.S.C.A. Even if plaintiff were required to file a reply in the instant case, it may well be doubted whether such reply would eliminate the necessity of, or adequately substitute for, other discovery proceedings.
It may also be noted that sparing use of the discretion to require additional pleadings is likely to incude earlier use of discovery proceedings and the more efficient disposal of cases.
And now, September 27, 1950, the motion to require plaintiff to reply to the answer of defendant is denied.