Mott v. City of Flora , 3 F.R.D. 232 ( 1943 )

WHAM, District Judge.

This case is before the court upon a motion by the defendant City of Flora to strike certain portions of the complaint, namely, paragraphs numbered one, two, three, four, five and six of the prayer of the complaint and upon a motion to dismiss by all defendants other than the City of Flora. The defendants other than the City of Flora are the mayor, commissioners and certain other officials of the City of Flora in their official and individual capacities.

It would appear that the facts set forth in the complaint are sufficient to require an answer by the City of Flora and by the officials and individuals named in the complaint. Getz v. City of Harvey, 7 Cir., 118 F.2d 817; Bank of Burlington v. City of Murphysboro, 7 Cir., 96 F.2d 899; Rothschild v. Village of Calumet Park, 350 Ill. 330, 183 N.E. 337; City of Jacksonville v. Bankers Life Co., 7 Cir., 90 F.2d 141.

If certain relief is sought to which plaintiff may not be entitled after a hearing on the merits, such relief will be' denied as of course.

Though I cannot know what the answer may disclose, but assuming that the allegations of the complaint are true, as I must under the motion to dismiss, it would seem that this is a case that should not require litigation for its proper settlement and disposition in fairness to all parties concerned. I make this comment at this time in view of the fact that it will be my duty under the pretrial procedure, when issues have been completed, to encourage a settlement of the case.

The motion of the City of Flora to strike certain portions of the complaint and the motion of the other defendants to dismiss will be and each is hereby denied.