Continental Assurance Co. v. Tucker

S.D. New York

Continental Assurance Co. v. Tucker

138 F. Supp. 242, 1955 U.S. Dist. LEXIS 2248

DecidedSeptember 2, 1955

StatusPublished

This text of 138 F. Supp. 242 (Continental Assurance Co. v. Tucker) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Continental Assurance Co. v. Tucker, 138 F. Supp. 242, 1955 U.S. Dist. LEXIS 2248 (S.D.N.Y. 1955).

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Opinion

LUMBARD, Circuit Judge.

This is a motion by defendant Chloe Grant to dismiss plaintiff’s inter-pleader suit on the ground that the complaint fails to state a claim upon which relief can be granted. An identical motion was made by this defendant in March of this year and was denied by Judge Murphy. Defendant argues that because Judge Murphy did not discuss in his short memorandum all the issues raised by that motion, we must now assume that he did not consider them and must therefore proceed to consider them now. A District Judge has no obligation in a matter of this kind to discuss every issue raised and it may not be assumed that his lack of commentary reflected a lack of consideration. It is settled in this Circuit that when one District Judge rules on a motion his decision is the law of the ease and cannot be reviewed by one of his colleagues. Commercial Union of America, Inc., v. Anglo-South American Bank, Ltd., 2 Cir., 1925, 10 F.2d 937. In that case the District Judge whose ruling was sought to be overturned had filed no opinion.

There is one minor matter raised by the defendant’s new motion here which was perhaps not before Judge Murphy. Defendant contends that since Gussie Mae Cunningham, the only defendant who is not a resident of New York, has failed to appear in the action, there is no longer any reason to proceed in the Federal Court. This contention is without merit. If the suit was properly here before her failure to appear, it is properly here now. Since she was properly served, the suit will be binding on her and adjudicate her rights whether she appears or not.

Defendant’s motion is therefore in all respects denied.

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LUMBARD, Circuit Judge.

This is a motion by defendant Chloe Grant to dismiss plaintiff’s inter-pleader suit on the ground that the complaint fails to state a claim upon which relief can be granted. An identical motion was made by this defendant in March of this year and was denied by Judge Murphy. Defendant argues that because Judge Murphy did not discuss in his short memorandum all the issues raised by that motion, we must now assume that he did not consider them and must therefore proceed to consider them now. A District Judge has no obligation in a matter of this kind to discuss every issue raised and it may not be assumed that his lack of commentary reflected a lack of consideration. It is settled in this Circuit that when one District Judge rules on a motion his decision is the law of the ease and cannot be reviewed by one of his colleagues. Commercial Union of America, Inc., v. Anglo-South American Bank, Ltd., 2 Cir., 1925, 10 F.2d 937. In that case the District Judge whose ruling was sought to be overturned had filed no opinion.

There is one minor matter raised by the defendant’s new motion here which was perhaps not before Judge Murphy. Defendant contends that since Gussie Mae Cunningham, the only defendant who is not a resident of New York, has failed to appear in the action, there is no longer any reason to proceed in the Federal Court. This contention is without merit. If the suit was properly here before her failure to appear, it is properly here now. Since she was properly served, the suit will be binding on her and adjudicate her rights whether she appears or not.

Defendant’s motion is therefore in all respects denied.

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138 F. Supp. 242, 1955 U.S. Dist. LEXIS 2248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-assurance-co-v-tucker-nysd-1955.

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