Westmoreland Asbestos Co. v. Johns-Manville Corp.

MANDELBAUM, District Judge.

The defendants move for reargument of certain sections of their original motion. On December 6, 1939, in a written opinion, the court disposed of the motion in the following manner: Section 1, granted in toto; section 2, granted in part only; section 3, denied with two exceptions; section 4, denied in toto; section 5 was not passed upon. This reargument concerns only sections 3, 4, and 5.

I have again re-examined the marked complaint, the original briefs submitted, as well as the additional ones furnished on the reargument. Nothing, as I see it, has been presented to which I have not given consideration in the first instance, and I will accordingly stand by my original ruling.

Since the defendants raise the point that section S was not passed upon in my original decision, a few words of explanation are in order. I did not, nor do I now consider section 5 (which seeks to direct plaintiffs to serve and file a corrected pleading) as a separate motion but rather in the nature of incidental relief dependent upon the disposition of the other sections of the motion. In view of that disposition, I see no necessity for the service of a corrected pleading (the new Federal Rules, 28 U.S.C.A. following section 723c, treat only of amended and supplemental pleadings). It may even be that a corrected pleading would result in confusion and bring about new motions addressed to such corrected pleading.

Reargument is granted but the original decision is adhered to.