# United States v. Frank B. Killian Company

> Court of Appeals for the Sixth Circuit · July 14, 1959 · 269 F.2d 491

URL: https://www.frixlaw.com/law-library/cases/9446933

## Case

- **Full name:** UNITED STATES of America, Appellant, v. FRANK B. KILLIAN COMPANY, Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** July 14, 1959
- **Citations:** 269 F.2d 491; 83 Ohio Law. Abs. 55; 10 Ohio Op. 2d 40; 122 U.S.P.Q. (BNA) 593; 2 Fed. R. Serv. 2d 989; 1959 U.S. App. LEXIS 5425
- **Precedential status:** Published
- **Opinion:** Concurrence by McALLISTER
- **Judges:** Allen, McAllister, Mathes
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9446933

## Opinion text

McALLISTER, Circuit Judge
(concurring).
The complaint in this case relied upon a cause of action under a statute. Defendant moved to dismiss on the ground that the statute did not provide for the relief sought. The District Court entered an order dismissing the case on the ground that the statute did not entitle plaintiff to any relief.
The complaint was filed under a certain theory; the defendant moved to dismiss, under that theory; and, upon that theory, the District Court dismissed the case.
Thereafter, the District Court denied a petition for reconsideration, for relief from the judgment, and for leave to file an amended complaint, setting up a claim to recovery under a different theory— that of contract.
This appeal is only from the order of the District Court dismissing the case. Since the entry of the order of dismissal, the government has, as above stated, sought reconsideration of the order in the District Court and leave to amend the complaint; but no appeal was taken from the order of the District Court denying such a motion.
We are not reviewing any claimed abuse of discretion in denying reconsideration and leave to amend. We are reviewing only the District Court’s order dismissing the case.
There was no error on the part of the District Court in its order of dismissal. However, as pointed out by Judge Mathes in the accompanying opinion, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45, 46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 . While this is not an appeal from an order dismissing the case, nevertheless, under the facts, as set forth by Judge MATHES, I concur in his opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9446933. Public record. Not legal advice.