William James Hoston v. The J. R. Watkins Company, a Corporation, AKA Watkins Products, Inc., a Corporation

Plaintiff, Hoston, appeals from a summary judgment entered in a diversity case. The judgment orders that he take nothing by his complaint and that the defendant J. R. Watkins Company (Watkins) have judgment against him in the sum of $2,151.27. The latter judgment is based upon a counterclaim for the net balance of an account between the parties for goods sold by Watkins to plaintiff. The counterclaim was denominated as such, but plaintiff did not file a reply (see Rule 7(a), F.R.Civ.P., 28 U.S.C.A.) either within the time prescribed by Rule 12(a) or at all, and his default was duly entered (Rule 55). In his deposition, plaintiff admitted that the account, a copy of which is attached to the answer, was correct. We therefore need not consider this phase of the matter further.

Attorneys undertaking to try cases in the Federal Courts should familiarize themselves with the applicable Federal statutes and with the Federal Rules of Civil Procedure. In this case, the complaint was obviously drawn to conform to the California practice. (Cal.Code Civ. Proc. Section 426), rather than to Rule 8 (a) F.R.Civ.P. Watkins served a “Notice to Produce” (Cal.Code Civ.Proc. Section 1938), a procedure…