Lucerne Products, Inc. v. Skil Corp.

489 F. Supp. 1128

• Court: District Court, N.D. Ohio
• Decided: February 22, 1980
• Docket: No. C 70-335
• Status: Published

Opinion

ORDER

LAMBROS, District Judge.

This action is on an account alleged to be due plaintiff. Defendant answers that the sum demanded remains unpaid, that goods and merchandise of approximately equal value to the sum demanded were received, and that demand for the sum has been made on defendant by plaintiff. Defendant asserts by way of defense only that the sum should be set off against sums owed by plaintiff to defendant that were the subject of two consolidated cases whose pendency before this Court was recently terminated by final judgment. [Cases C 69-461 and C 74-121.]

The case was originally filed in the Common Pleas Court of Summit County, Ohio, whence it was removed to this district. This case was dismissed as being more properly a compulsory counterclaim under Rule 13(a), Federal Rules of Civil Procedure, in the C 69-461 and C 74-121 cases. The Sixth Circuit remanded the case, having decided that the case need not be pleaded as a counterclaim. Counsel agreed that the issues should be resolved after the consolidated cases had been terminated, and, therefore, the instant case was terminated from this Court’s active docket, subject to an absolute right of either party to reinstatement, by Order of December 22, 1975.

Plaintiff moved to reinstate on March 23, 1976. The motion was granted on that same day.

Now the consolidated cases have terminated, and this case must be resolved. Defendant’s Answer admits all the necessary elements of plaintiff’s claim, and the defense of set-off is not applicable. This Court therefore grants plaintiff’s motion for summary judgment and awards plaintiff the sum of $46,308.01. Given the nature of the related proceedings and history of the instant case, an award of interest, costs and attorneys fees is inappropriate.

IT IS SO ORDERED.