Appendix — Chemical Cleaning, Inc. v. Dow Chemical Co.

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APPENDIX

——— eee

U. S. DISTRICT COURT FOR THE

EASTERN DISTRICT OF LOUISIANA

Dow CuHemicaL Co.

olay

CuemicaL CLEANING, Inc.

Order cf Injunction

(Number and title omitted) (Filed: December 7, 1961)

The above-entitled action having been brought by The

Dow Chemical Company for infringements by Chemical

Cleaning, Inc., John H. Rusch and George Lewis of United

States Letters Patent 2,959,555 and the following having.

been stipulated and agreed by and between the parties

hereto, by their respective counsel,

Ir Is OrnpErED, ADJUDGED AND DECREED:

1. That this court has jurisdiction over the parties hereto

and the subject matter hereof.

2. That United States Letters Patent 2,959,555, issued

November 8, 1960, is valid; and that plaintiff, The Dow

Chemical Company, is the lawful owner of the entire right,

title and interest in and to said Letters Patent and the

inventions thereof and has been such owner thereof since

its date of issuance.

3. That defendants, Chemical Cleaning, Inc., John H.

Rusch and George Lewis, have infringed said Letters Pat-

ent 2,959,555 by using or causing to be used methods of

said Letters Patent and by making, causing to be made,

using or causing to be used, selling or causing to be sold

products of said Letters Patent.

4. That as a result of said infringements by Chemical

Cleaning, Inc., John H. Rusch and George Lewis of said

2a

Letters Patent, plaintiff, The Dow Chemical Company,

has incurred, since the date of issuance of said Letters

Patent, damages according to law.

5. That a Writ of Injunction issue out of and under the

seal of this court directed to defendants, Chemical Clean-

ing, Ine., John H. Rusch and George Lewis, their officers,

agents, servants, attorneys, employees, associates and

privies and those persons in active concert and partici-

pation with them, enjoining and restricting them and each

of them from directly or indirectly infringing United

States Letters Patent 2,959,555 and from offering or ad-

vertising so to do, and from aiding or abetting in any

way contributing to the infringement of any of the claims

of said Letters Patent.

6. In lieu of an accounting, counsel for the respective

parties have agreed upon damages, the payment and re-

ceipt of which is acknowledged.

s/ J. SKELLY WricHT

United States District Judge

Datep: December 7th, 1961

Conclusions of Law

1. This Court has statutory authority to grant relief

and to award damages, costs, attorneys’ fees and ex-

penses, against defendants, for violation of an injunction

in a patent infringement case. 35 U.S.C., §§ 283, 284 and

285.

2. In a contempt proceeding for violation of an injunc-

tion against infringement, the question is whether the

modified composition is equivalent to the original in re-

lation to the patent in the suit. Patton v. Stone, (5th Cir.,

194°), 178 F. 2d 515, 517; E-I-M- Co. v. Philadelphia Gear

Works (5th Cir., 1955), 223 F. 2d 36, 40.

dja

3. The validity of the plaintiff’s patent 2,959,555 has

been determined between the parties and such issues are

res judicata.

4. The modified solution employed by the defendants in

their boiler cleaning operations is fully equivalent to the

original adjudicated solution in relatiou to the patent in

suit, and does the same work and accomplishes substan-

tially the same result as thiourea. Graver Tank & Mfg.

Co. Inc. v. Linde Air Products Co., 1950, 339 U.S. 605,

608, 609, 70 S. Ct. 854, 94 L. Ed. 1097.

5. The use of Sequestrol 60 by defendants violated the

injunction and constituted infringement of plaintiff’s Pat-

ent No. 2,959,555.

6. Defendants knowingly and wilfully violated the in-

junction order of December 7, 1961, and are guilty of civil

contempt.

New Orleans, Louisiana, December 30, 1965.

s/ Herpert W. CurisTENBERRY

United States District Judge

Judgment

(Numebr and title omitted) (Filed: January 7, 1966)

In accordance with the Findings of Fact and Conclusions

of Law made and entered this date, the Court now makes

and enters the following Judgment:

It is, for cause shown, Orverep, ApsJUDGED AND DEcREED

that the said defendants Curmican CLEANING, INc., a cor-

poration, Jonn H. Ruscu, individually, and Grorcr LEwIs,

individually, are guilty of wilful civil contempt of this

Court for having failed and refused to ovey its Final

Judgment and Injunction of December 7, 1961.

1. That defendants purge themselves of their contempt

of this Court by taking the following action:

4a

(a) Fully comply with all of the provisions of the Court’s

Final Judgment and Injunction of December 7, 1961;

(b) That defendants cease and desist from making,

using, selling or offering for sale, in any manner what-

soever, said Sequestrol 60, and any other solution sub-

stantially equivalent thereto or in any manner whatsoever

embodying the inventions disclosed and claimed in said

Letters Patent No. 2,959,555, or from infringing upon

said patents in any other way, for the respective life of

said patent.

(c) That defendants pay to plaintiff general damages

in the sum of $1,000.00, together with all costs of this

prosecution.

New Orleans, Louisiana, December 30, 1965.

s/ Hersert W. CHRISTEN BERRY

United States District Judge

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23498

CuemicaL CLEANING, Inc., Jonn H. Ruscw and

GeorcE Lewis, Appellants-A ppellees,

v.

Tue Dow CuHemicaL Company, Appellee-Appellant.

(And Reverse Title)

Appeals from the United States District Court for the

Eastern District of Louisiana.

(June 15, 1967)

Before Hutcueson, Gewrn and Dyer, Circuit Judges.

Hvutcueson, Circuit Judge: This appeal is from a judg-

ment of the district court holding Chemical Cleaning, Inc.

(CCI) guilty of civil contempt in that it knowingly and

oa

willfully violated an order which had enjoined it from

further infringing a patent held by Dow Chemical. We

affirm on the issue of contempt, but remand for a hearing

on the issue of damages and costs.

On November 8, 1960, Dow obtained Patent No. 2,959,555

(hereafter Patent 555) which claims a chemical process

to be used in the cleaning of industrial steam generating

boilers. Such boilers accumulate on their metal sides in-

crustations of copper and iron oxide. The cleaning of the

boilers involves the periodic removal of the incrustations.

The cleaning job is made difficult by the fact that the

copper, once removed, has a tendency to become rede-

posited on the metal surfaces before it ean be flushed from

the boiler. Patent 555 avoids that difficulty by the use of

thiourea, a urea derivative, which acts as a sequestering

agent to hold the copper within the cleaning solution

until the whole solution can be flushed out of the boiler.

CCI also cleans industrial boilers by use of chemicals.

Pursuant to a suit brought by Dow against CCI for in-

fringement of Patent 555, the United States District Court

for the Eastern District of Louisiana entered an order on

December 7, 1961, that Dow’s patent was valid and had

been infringed in that CCI had employed thiourea in its

boiler cleaning operations. An injunction was issued

against CCI ordering that it refrain from further in-

fringements of the patent.

CCI then began using another chemical compound, mono-

methylolthiourea, which it called Sequestrol 60. Dow filed

the instant contempt action alleging that the use of the

new solution constituted a violation of the injunction since

Sequestrol 60 was merely thiourea to which formaldehyde

had been added, and which, when used, disassociated to

produce significant amounts of thiourea. The court below

found that Sequestrol 60 was indeed the equivalent of

thiourea and held CCT in eivil contempt of the injunction.

it is the issue of equivalency which we first consider.

ba

In recognition of the fact that a patent would be vir-

tually worthless if it did not protect against devices which

incorporate only unimportant variations of the patented

device, the doctrine of equivalents provides that a later-

developed device will be regarded as the equivalent of the

patented device if, although different in form or shape, it

‘*performs substantially the same function in substantially

the same way to obtain the same result.’’ Sanitary

Refrigerator Co. v. Winters, 280 U.S. 30, 42 (1929). In

its early development, the doctrine generally was applied

in eases involving the equivalence of devices having me-

chanical components. Today, however, the same principles

are applied to compositions where there is equivalence

between chemical ingredients. Graver Mfg. Co. v. Linde

Co., 339 U.S. 605, 609 (1955).

In Graver, the Supreme Court spoke to the problem of

determining what constitutes equivalency:

**Consideration must be given to the purpose for

which an ingredient is used in a patent, the qualities

it has when combined with the other ingredients, and

the function which it is intended to perform.’’

‘<4 finding of equivalence is a determination of fact.

Proof can be made in any form: through testimony of

experts or others versed in the technology by; docu-

ments, ineluding texts and treatises; and, of course, by

the disclosure of the prior art. Like any other issue

of fact, final determination requires a balancing of

credibility, persuasiveness and weight of evidence. It

is to be decided by the trial court and that court’s de-

cision, under general principles of appellate review,

should not be disturbed unless clearly erroneons.

Particularly is this so in a field where so much de-

pends upon familiarity with specific scientific prob-

lems and principles not usually contained in the general

storehouse of knowledge and experience.’’ Td, at 609-

610. (emphasis added)

7a

The district court sitting without a jury made full and

complete findings of fact after considering expert testi-

mony and the results of various experiments offered by

both parties. Because there is little dispute as to the

correctness of these findings, they need not be repeated

in specific detail here. A brief summary will suffice.

Sequestrol 60 is prepared by compounding thiourea and

formaldehyde under alkaline conditions. The process is

reversible, and the trial court found that under the boiler

treating conditions employed by CCI, Sequestrol 60 dis-

associates to produce about 90% by weight of thiourea

in the free or uncombined form, and some formaldehyde.

The court determined that Sequestrol 60 does the same

work, is employed in the same way, and accomplishes the

same result as thiourea in functioning as a copper se-

questering agent. Sequestrol 60 was held to be the

equivalent of the thiourea solution protected by Patent 959.

Hence, it was decided that CCI had violated the injunction

because it had further infringed Dow’s patent by the use

of Sequestrol 60; moreover, the violation was considered

deliberate and willful.

CCI apparently does not attack the factual findings of

the district court, but challenges only the conclusions to

be drawn from such findings. CCI contends that the factual

finding of equivalency will not support the conclusion of

what it terms ‘‘legal equivalency’? because the court er-

roneously failed to consider an expired patent, by denying

its admission into evidence, which CCI claimed it was

practicing. As pointed out in the Graver case, however,

a finding of equivalency is a determination of fact. Fur-

thermore, proof that CCI was practicing an expired patent

should have been adduced at the original infringement

proceeding. CCI’s contentions on this point must be re-

jected, and we conclude that the district court’s finding

of equivalency, which is supported by considerable evi-

dence, must be affirmed.

=

Sa

Dow filed a cross-appeal alleging that the district court

erred in failing to provide a separate hearing on the issue

of damages and costs, including attorneys’ fees, following

the decision on the merits. The contempt action was filed

by Dow on April 2, 1962, on the basis of CCI’s clean-

ing activities at the Riverbend Station of the Duke Light

& Power Company. Due to the failure of a court reporter

to transcribe the first hearing, a delay of two years oc-

curred before a recorded hearing was obtained, since the

Riverbend cleaning operation was the only contemptuous

activity known to Dow at the time this action was filed,

Dow alleged damages of only $1,000 which were awarded

it by the district court. Dow claims, however, that CCI

had committed other contemptuous acts during the two-

year period which the court should have considered, but

did not, in its award of damages. Dow says no evidence

going tu preve increased damages was presented in the

trial court pursuant to an express agreement between

Dow’s counsel and the trial court that the issues of lia-

yility and damages would be separated. The agreement

was as follows:

‘*Your Honor, I would like to clarify one thing, if I

could. At the previous hearing it was my understand-

ing that we would separate the issues of liability and

damages and we would not go into proof of damages

at this time. If that is still Your Honor’s intention,

Plaintiff rests.’’

‘*All right’’, answered the judge. We feel that Dow’s

counsel was inadvertently lulled into the belief that the

issue of damages would be left to be considered separately.

Yet damages were awarded without a further hearing for

Dow to present its evidence thereon. CCI does not point

to any part of the record which shows that this agree-

ment subsequently was altered, nor do we have any

reason to believe that it was.

9a

The judgment holding CCI in civil contempt is af-

firmed. The award of $1,000 is reversed, and the case is

remanded for a consideration of an award of damages

and attorneys’ fees, if any. In view of this disposition

of the case, the motion by Dow to dismiss CCI’s appeal

is denied.

AFFIRMED IN Part; REVERSED AND REMANDED IN Part.

July 31, 1967

Per Curiam

The petition for rehearing is denied and no member of

this panel nor judge in regular active service on the Court

having requested that the Court be polled on rehearing en

bane, Rule 25(a), subpar. (b), the petition for rehearing

en banc is denied.

Judgment

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Eastern District of Louisiana, and was argued by counsel;

On ConsmeERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby,

affirmed in part, and reversed in part, and that this

cause be, and the same is hereby remanded to the said

District Court;

It is further ordered and adjudged that the appellants-

appellees, Chemical Cleaning, Inc., John H. Rusch and

George Lewis, be condemned, in solido, to pay the costs

of this cause in this Court for which execution may ss

issued out of the said District Court.

June 15, 1967

Issued as Mandate: Aug. 10, 1967

10a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

Civil Action No. 11665, Section ‘*B’’

Tue Dow CuemicaL Company, a corporation,

versus

CHEMICAL CLEANING, INc., a corporation,

Joun Hl. Ruscn, Individually & Georce Lewis, Individually.

Judgment After Accounting

This cause eame on for hearing on a previous day on ob-

jections to the findings of fact and conclusions of law, ren-

dered by the special master on the statement of the account.

The Court, having considered the arguments of counsel,

having studied the legal memoranda submitted by both par-

ties, and having considered the evidence presented to the

special master, accordingly ;

It Is OrpvereD, ApsuDGED AND Decreep that this Court has

jurisdiction of the parties and of the subject matter of this

action;

It Is FurtHER ORDERED, ADJUDGED AND DecreEeEpD that plain- —/

tiff, The Dow Chemieal Company, recover of defendants

Chemieal Cleaning, Ine., John H. Ruseh and George Lewis

in solido, the sum of $90,812.41 together with interest there-

on at the legal rate from this date until paid.

It Is FurtHer Orperep, ApsuDGED AND DecrEeEp that the

Master’s fees are hereby fixed at $5,900.00 and said Mas-

ter’s fees, and all other costs of this proceeding, be allo-

eated between the parties in the proportion of 60% to the

defendants and 40% to the plaintiff.

Dated at New Orleans, Louisiana this 28th day of July,

1969.

/s/ FREDERIK J. R. HEEBE

Judge, United States District Court

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 28531

TE Dow Cuemicau Company, a corporation,

Plaintiff-A ppellee-Cross-A ppellant,

versus

CuEeMICAL CLEANING, INc., a corporation, Joan H Rvscu,

Individually, and Grorcr Lewis, Individually,

Defendants-A ppellants-Cross-A ppellees.

Appeals from the United States District Court for the

Eastern District of Louisiana

(November 6, 1970)

Before Gew1n, GotpBerc and Sim PSON, Circuit Judges.

Smupsox, Cireuit Judge: The appellant Chemical

Cleaning, Incorporated (CC1) was adjudged in the district

court to have been guilty of willful and knowing violation

of an injunctive order of the district court prohibiting it

from further infringement of a Dow Chemical Company

(Dow) patent relating to the process of acid chemical

cleaning of utility boilers. In an opinion reported at

379 F.2d 294 we affirmed the district court and remanded

for consideration of the questions of damages and

attorney’s fees. On remand the court below referred these

matters to a Special Master for recommendations, The

Special Master’s report was adopted without variance.

Damages and attorney’s fees were awarded to Dow in the

12a

amount of $90,812.41 together with interest. We consider

an appeal by CCI and a cross-appeal by Dow based upon

objections to the findings and awards as set forth in the

report of the Special Master and as adopted by the trial

court. We diseern no reversible error in the record and

affirm as to both appeals.

CCL first complains that the district court erred in

awarding $23,769.57 as the profit which Dow would have

earned on the boiler cleaning operations which CCI

conducted in violation of the court order against infringe-

ment. The erux of this charge is that the Dow patent

covered only one step in the two-step boiler cleaning opera-

tions, and therefore Dow is entitled to damages for only

those profits it would“have received from completion of

the one step. The argument is that the damages should

be apportioned as to each step in the proeess, and awarded

as to the infringing step only.

The distriet court found by its Finding of Fact No. 5

that the boiler cleaning operation was in fact a two-step

process, and that the first step in the process did not

involve the use of Dow’s patent. However, the court

further found that the two stages were interrelated and

that CCI could not have performed the non-infringing first

step without also performir the infringing second stage.

(Finding of Fact No. 13). «his critical finding was based

on evidence that in every instance the bid specifications

required that the patented cleaning method be performed

alone or in combination with another stage, and that in

those cases where two stages were specified, the bid would

not have been awarded to a bidder unable to perform both

stages. It follows of course that if CCI had violated the

injunction, Dow would have received the entire bid. Apart

from a bald unsupported statement that the district court

findings and award were incorrect, CCI fails to point out

anything in the evidence upon which we can base a deter-

mination that the finding below was clearly erroneous.

Rule 52(a), F.R.Civ.P. We are far from ‘‘convinced that

13a

a mistake has been made’’. McAllister v. United States,

348 U.S. 19, 75 S.Ct. 6, 99 L.Ed.2d 20 (1954).

The district court doubled the award of damages to

Dow for lost profits because of the ‘knowing and willful

violation by [CCI] of the writ of injunetion’”’. CCI on

this appeal would relitigate the question of the knowing

and willful nature of the violation. That matter was

determined in the previous litigation before this Court

and is clearly res judicata here. Our consideration is

confined to the propriety of double damages where it has

been established that the violation of the injunction was

‘‘knowing and willful’’.

CCI argues that Title 35, U.S.C., Section 2841 as

illuminated in Carter Products, Incorporated v. Colgate-

Palmolive Company, 214 f.Supp. 383 (D. Md. 1963),

establishes a principle that in patent infringement cases

the district court may award exemplary damages only

where the infringement is ‘‘conscious and deliberate’.

Assuming arguendo that CCI’s theory is correctly applied

here, we view ‘‘conscious and deliberate’? as the sub-

stantially exact equivalent of our language on the prior

appeal, 379 F.2d 294 at 297, approving the lower court’s

determination that CCI’s violation of the injunction was

‘‘deliberate and willful’’. The two terms obviously and

1**$ 284. Damages

Upon finding for the claimant the court shall award the

claimant damages adequate to compensate for the infringement,

but in no event less than a reasonable royalty for the use made

of the invention by the infringer, together with interest and

costs as fixed by the court.

‘““When the damages are not found by a jury, the court shall

assess them. In either event the court may increase the dam-

ages up to three times the amount found or assessed.

‘The court may receive expert testimony as an aid to the de-

termination of damages or of what royalty would be reasonable

under the circumstances. July 19, 1952, c. 950, § 1, 66 Stat.

813.”’

lta

interchangeably refer to the element of scienter. Thus

even accepting CCI’s argument, it is clear that the court

had the power to award double damages. Baltz v. Walgreen

Company, 198 F.Supp. 22, 27 (W.D. Tenn. 1961) ; Title 35,

U.S.C., $284, footnote 1, supra.

But CCL’s argument fails to recognize that this is a

civil contempt proceeding, not a patent infringement suit.

The patent infringement was established in the previous

round of litigation; we here determine the appropriateness

of damages, compensatory and exemplary, for willful

violation of a court order. Siebring v. Hansen, 8 Cir, 1965,

346 F.2d 474, 480; Textag Company v. Hayslip, 5 Cir.

1951, 192 F.2d 485, 488. In dealing with a civil contempt

proceeding the district court was not bound by the pro-

visions of Title 35, U.S.C., $284. Rather it was free to

exercise the inherent diseretion possessed by a court to

correct willful violations of its solemnly passed orders.*

CCI’s confusion over the distinction between patent

cases and contempt of court cases carries over into the

area of attorney’s fees and other expenses. CCI urges

that the district court erred in awarding Dow $24,371.05 in

attorney’s fees, $5,917.77 for attorney’s expenses and

$12,984.85 for salary costs for several Dow employees

involved in the investigation by Dow. CCI argues that

attorney’s fees and other expenses may only be awarded

in patent cases in accordance with statutes enacted by

Congress. Title 35, U.S.C., § 285 provides:

‘*The Court in exceptional cases may award reason-

able attorney fees to the prevailing party’’.

* Additionally, while not involved here, Title 18, U.S.C., § 401

gives courts of the United States power to punish by fine or im-

prisonment at its discretion

(‘e282 2 &

(3) Disobedience or resistance to its lawful writ, process,

order, rule, decree, or command.’’

lda

The court found that the facts of this case did not qualify

it as an ‘‘exceptional’’ case. (Finding of Fact No. 27).

We iterate that this is not a patent infringement case—

it is a civil contempt proceeding. There are contempt cases

in abundant number holding that a court has discretion

to ward reasonable attorney’s fees and other expenses

necessary to make an innocent party whole. Broadview

Chemical Corporation vy. Loctite Corporation, 159 U.S.P.Q.

SO (D. Conn, 1968), affirmed 2 Cir. 1969, 406 F.2d 538,

cert. denied 394 U.S. 976 (1969) ; Mead Johnson &€ Company

v. Baby’s Formula Service, Incorporated, 5 Cir, 1968, 402

F.2d 23; Chas. Pfizer & Co. v. Davis Edwards Pharmacal

Corp., 2 Cir. 1967, 3885 F.2d 533, 5388; Siebring v. Hansen,

supra; Western Lighting Corp. v. Smoot-Holman Co.,

9 Cir. 1965, 352 F.2d 1019, 1022; Universal Match Corp. v.

New Castle Prods., Inc., 7 Cir. 1962, 308 F.2d 842; Sunbeam

Corp. v. Golden Rule Appliance Co., 2 Cir. 1958, 252 F.2d

467: Carter Prods., Inc. v. Colgate-Palmolive Co., supra;

Singer Mfg. Co. v. Sun Vacuum Stores, Inc., 192 F.Supp.

738, 742 (D.N.J. 1961); Minnesota Mining & Mfg. Co. v.

Neisner Bros., Inc., 122 F.Supp. 752, 755 (N.D. Ill. 1954).

Dow’s cross-appeal also involves the court’s award of

attorney’s fees. Dow paid approximately $78,000 in

attorney’s fees of which $48,744.11 was found to be

ineurred in preparation and support of the motion to show

cause why CCI should not be held in contempt prior to

the beginning of the accounting proceedings before the

Special Master in February of 1968. Of the remainder,

$25,110.00 was for attorney’s fees charged during the

accounting. Although the court found the attorney’s fees

to be reasonable, it also found that $48,744.11 was excessive

in comparison to the amount of damages suffered by Dow,

and therefore limited recovery of attorney’s fees to one-

half that amount. No damages were awarded for attorney’s

fees incurred during the accounting.

The district court apparently concluded that the bid

specifications sufficiently informed Dow of the approx-

16a

imate damages, and that knowing this Dow proceeded

nonetheless to bind itself for inordinately high legal

expenses. It is also shown that Dow incurred substantial

expenses in an unsuccessful attempt to establish a damage

figure of $87,200.00 based on an incremental lost profit

theory, as opposed to the $23,769.11 figure computed on the

basis of actual net profit lost by Dow. Dow counters by

arguing that the legal fees would have been much less but

for the uncooperative and contrary attitude which CCI took

toward the litigation. These are all warmed over versions

of the arguments advanced by the parties to the Special

Master and the district court. They represent matters in

substantial conflict as to which the experienced trial judge

has exercised his discretion. No abuse of that discretion

is made manifest to us, and we affirm as to Dow’s cross-

appeal as well as to CCI’s original appeal.

AFFIRMED.

17a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 28531

Tne Dow Cuemica Company, a corporation,

Plaintiff-A ppellee-Cross-A ppellant,

versus

CueMIcaL CLEANING, INc., a corporation, Joun H. Ruscnu,

Individually, and Grorce Lewis, Individually,

Defendants-A ppellants-Cross-A ppellees.

Appeals from the United States District Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion Nov. 6, 1970, 5 Cir., 1970, —— F.2d ——).

(December 17, 1970)

Before Gewin, GotpBerc and Simpson, Circuit Judges.

Per Curiam: The Petition for Rehearing is Dentep and

no member of this panel nor Judge in regular active service

on the Court having requested that the Court be polled on

rehearing en bane, (Rule 35 Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the Petition for

Rehearing En Bane is Deniep.

18a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1969

No. 28531

D. C. Docket No. C.A. 11,665, Div. ‘‘B”’

Tue Dow CuemicaL Company, a corporation,

Plaintiff-A ppellee-Cross-A ppellant,

versus

Cnemicat CLEANING, INc., a corporation, Joun H. Ruscn,

Individually, and Gzorcr Lewis, Individually,

Defendants-A ppellants-Cross-A ppellees.

Appeals from the United States District Court for the

Eastern District of Louisiana

Before Gewrn, GoLpBERG and Simpson, Circuit Judges.

Judgment

This cause came on to be heard on the transcript of the

record from the United States Distriet Court for the East-

ern District of Louisiana, and was argued by counsel;

On ConstDERATION Wuereor, It is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in this cause be, and the same is hereby, affirmed.

It is fvrther ordered that defendants-appellants-cross-

appellees pay to plaintiff-appellee-cross-appellant, the costs

on appeal to be taxed by the Clerk of this Court.

November 6, 1970

Issued as Mandate: Dec. 28, 1970

.

19a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Minute Entry, June 19, 1963, Christenberry, J.

Division A No. 11665

Civil Action

THe Dow CHemicaL Company

Vv.

CHEMICAL CLEANING, INC., ET AL.

This cause came on this day for hearing on motion of

defendants to dismiss order to show cause and plaintiff’s

motion for contempt judgment; and motion of defendants

to stay request for admissions.

Present: Charles Merriam, Esq.

Attorney for Plaintiff

Ted Rantes, Esa,

Attorney for Defendants

Argument.

Ir Is OrvErep that motion of defendants to dismiss order

to show cause and plaintiff’s motion for contempt judg-

ment be, and the same is hereby, Dentep.

Ir Is Furtuer Orperep that motion of Defendants to

stay request for admission be, and the same is hereby,

Dentep, and defendants have 20 days to answer requests

for admissions.

June 21, 1963