TAGGART v. BREMNER et al., 236 F. 544

KOHLSAAT, Circuit Judge (after stating the facts as above). The subject-matter of the present suit is one within the jurisdiction of the federal courts and subject to the provisions of federal equity rule 26 (198 Fed. xxv, 115 C. C. A. xxv).

By reference to the rule it appears that the main object thereof is to promote the convenient administration of justice. “If it appear,” the rule concludes, “that any such causes of action cannot be conveniently disposed of together, the court may order separate trials.” We are therefore called upon to hold that the trial judge abused his discretion in denying to appellant the right to join the whole dental profession in one suit. Whatever may have been the practice prior to the adoption of the rule, the latter must and does control so far as it is applicable.

The grounds upon which the appellant seeks to justify the joinder of several hundred defendants, with varying defenses, in one bill, are (1) that the patents in suit have been • sustained (Taggart v. Moll, suit No. 30,850) in the District Court from which this cause is appealed; (2) that the issues affecting validity of the patents in suit are identical in the cases of all the defendants and would require but little time in presentation; (3) that these, together with answers to interrogatories presented in accordance with equity rule 58 (198 Fed. xxxiv, 115 C. C.

A. xxxiv) would make out a prima facie case of infringement; (4) that defendants have banded together and contributed funds to defeat appellant’s claim of infringement; (5) that it will be physically impossible for the court to try all the cases where infringement is charged before the expiration of the patent; (6) that appellant is financially unable to undertake to try said causes separately; and (7) that unless he can proceed to join the multitude of infringers in one suit he will not be able to obtain justice. These matters were considered by the court.

On the other hand, no attempt is made to claim joint, infringement by the defendants, ap-pellees herein. They are charged with being separate, independent tort-feasors, all trespassing on the same property, but without any consort, confederation, or joint share in the proceeds. One of the patents in suit has been defeated in another jurisdiction, where the patent for making patterns and molds as aforesaid was held invalid.

While the issues affecting validity of the patents in suit are substantially identical with regard to each of the defendants, no defendant is charged with any particular infringement for which such party is in said bill sought to be held; the defenses are concededly distinct, and some of the defendants are not even dentists, so that the general charge that all dentists infringe cannot apply to them. The mere joining in the Dental Mutual Protective Alliance and paying dues did not constitute the members of said alliance infringers.

It may well be doubted whether the joining of these defendants, appellees, in one suit, would in any way expedite the hearing upon each of said alleged infringements. A complete record would be required in each. The fact that the profits and damages in each case, if successful, would be small, while a large expense would be incurred in each case, if tried separately, cannot be deemed controlling. There are and have been in the past many cases in like situation. Courts are instituted for the purpose of establishing rights. Once these are settled, the rest, it may be assumed, will follow.

But the most startling result of appellant’s proposed course would be the opening of the courts to a scheme for dragging a multitude of alleged infringers into threatened expensive litigation in a single proceeding, whereby settlements would be submitted to rather than endure the worry and costs of litigation. It is difficult to see how anything but confusion and injustice to the many could result. Having these matters in mind, was it an unreasonable exercise of the discretion conferred upon the court by statute to order said bill to be dismissed, at appellant’s costs, as to all of the defendants save one?

We think not. Thus giving to equity rule 26 (198 Fed. xxv, 115 C. C. A. xxv) the most liberal construction possible, we fail to find any abuse of the discretion therein conferred upon the trial judge. We are of the opinion that the rule was adopted in the interest of simplified procedure, but that, as in the prior adjudications upon multifariousness, mis-joinder, and those of like nature, the application must depend largely upon the cirarmstances of each particular case, and rest in the sound discretion of the judge. We find no error in the action of the court upon any of the matters assigned for error.

The decree of the District Court is therefore affirmed.