Diapulse Manufacturing Corp. Of America v. The Birtcher Corporation

315 F.2d 148 DIAPULSE MANUFACTURING CORP. OF AMERICA, a corporation, Abraham J. Ginsberg and Jesse Ross, Appellants, v. The BIRTCHER CORPORATION, a corporation, and Cecil J. Birtcher, Appellees. No. 17907. United States Court of Appeals Ninth Circuit. March 14, 1963. Lawrence Harris, Los Angeles, Cal., for appellant. Monta W. Shirley, Los Angeles, Cal., for appellee. Before HAMLEY and BROWNING, Circuit Judges, and FOLEY, District Judge. HAMLEY, Circuit Judge. 1 This damage action for libel was dismissed by the district court because similar actions between the same parties were already pending in a district court in another state. In both states the jurisdiction of the district court was based on diversity of citizenship. 2 Plaintiffs appeal, contending that the court was without power to dismiss the action on this ground and that, if such power existed, it was an abuse of discretion to exercise it under the circumstances of this case. Instead, it is argued, the court should have stayed the proceedings in this action pending disposition of the other suits. 3 The facts relating to this appeal are not in dispute. On February 15, 1961, Diapulse Manufacturing Corp. of America…