C. F. Simonin's Sons, Inc. v. American Can Co.

MARIS, Circuit Judge. On May 28, 1937, the plaintiff commenced an action at law in this court against the defendant. Thereafter it filed in this court its bill for discovery in aid of that action. Upon motion of the defendant this bill was dismissed. D.C., 22 F.Supp. 784. The plaintiff now seeks leave to file an amended bill and argues that it has added additional averments which remove the objections that required the dismissal of the original bill. We deem it unnecessary, however, to determine whether the plaintiff’s proposed amended bill discloses a right to discovery in equity in view of the provisions of Rules 33 and 34 of the Rules of Civil Procedure for the District Courts of the United States which became effective September 16, 1938, 28 U.S.C.A. following section 723c. An examination of these rules discloses that they afford the plaintiff facilities for discovery from the defendant which are more liberal than it could obtain in a suit in equity for discovery. Furthermore it is clear that those rules may be invoked in aid of a civil action at any time after its commencement. We do not think that a bill in equity for discovery may be maintained where there is an adequate and complete remedy at law. Since September 16, 1938 the rules of civil procedure to which we have referred, and which have the force of law, have provided such a remedy. This remedy is fully available to the plaintiff in its pending action at law to which the rules are expressly applicable under the provisions of Rule 86, 28 U.S.C.A. following section 723c, unless we should find their application to be unjust or not feasible. In the case before us we can make no such finding. It follows that the plaintiff may pursue only the remedy provided by Rules 33 and 34, 28 U.S.C.A. following section 723c. The plaintiff’s petition for leave to file an amended bill of complaint is denied.