Baum v. Union Pac. R.

9 F.R.D. 540, 1949 U.S. Dist. LEXIS 3267

• Court: District Court, W.D. Missouri
• Decided: October 19, 1949
• Docket: No. 5931
• Status: Published

Opinion

REEVES, Chief Judge.

The complaint has been examined in the light of defendant’s motion. The defendant was justified in its motion for the reason that the plaintiff has commingled in one paragraph many sets of circumstances, all leading, however, to one purpose. There are no surplus averments and the complaint is logically drawn, but, as indicated, the facts are blended.

Paragraph (b) of Rule 10, Federal Rules of Civil Procedure, 28 U.S.C.A., directs that “all averments of claim * * * shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings.” This is a reasonable rule and is being enforced by the courts. Schoenberg v. Decorative Cabinet Corporation et al., D.C., 27 F.Supp. 802.

Since this case was removed from a state court the identical requirement was required by the Civil Code of the State of Missouri, see Section 847.43, 3 Mo.R.S.A. Cumulative Supplement.

The discretion exercised by Judge McLellan in Automatic Radio Mfg. Co., Inc., v. National Carbon Co., Inc., D.C., 35 F. Supp. 454, wo°uld not apply in this case. Judge McLellan did not make the requirement for the reason that the state law did not require such numbering and his opinion was on a removed case. The rule was upheld in Coral Gables, Inc., v. Skehan, D.C., 47 F.Supp. 1. This court ruled to the same effect in Bockelman v. Seaton, D.C., 4 F.R.D. 326.

No argument could be made in support of the complaint as it is now drawn for the reason that the rule which is the law for the guidance of the judges specifically require such numbering. The complaint should not be dismissed but the plaintiff is directed at the earliest possible moment to recast his complaint so as to comply with the Rule. It will be so ordered.