
    POWER TRANSMISSION CO., Inc., v. NEULAND.
    Civ. No. 2365.
    District Court, D. New Jersey.
    Dec. 8, 1943.
    Harry B. Rook, Esq., of Newark, N. J. (Victor D. Borst, of New York City, of counsel), for plaintiff.
    McCarter, English & Egner, of Newark, N. J. (Ward J. Herbert, of Newark, N. J., of counsel), for defendant.
   SMITH, District Judge.

This is a civil action to enforce specific performance of two contracts under which the plaintiff asserts a claim to the equitable title of certain inventions and a right to the legal title of certain patents in which the said inventions are defined. The action is before the court at this time on the motion of the defendant, under Rule 12(b) (6) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to dismiss the complaint for failure to state a claim upon which relief can be granted. This motion must be denied.

It is well established that a complaint should not be dismissed for failure to state a claim upon which relief can be granted except where it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claim. Continental Collieries v. Shober, 3 Cir., 130 F.2d 631; Cohen v. United States, 8 Cir., 129 F.2d 733; Tahir Erk v. Glenn L. Martin Co., 4 Cir., 116 F.2d 865; Brauch v. Birmingham, D.C., 49 F.Supp. 229; Eberle v. Sinclair Prairie Oil Co., D.C., 35 F.Supp. 296; Equitable Life Assur. Soc. v. Saftlas, D.C., 35 F.Supp. 62. If it is reasonably conceivable that the plaintiff, upon a trial of the action on the merits, may establish a cause of action which will entitle him to relief, the complaint should not be dismissed. Ibid. When the allegations of the present complaint are considered in the light most favorable to the plaintiff, as they must be, it cannot be said that the claim is devoid of merit.

The arguments urged by counsel for the respective parties in their briefs are primarily directed to the merits of the suit, and it, therefore, seems inadvisable to discuss them at this time. These arguments advance theories upon which the suit may either be sustained or defended, and their discussion at this time might be misconstrued as a decision on the issues of law, a decision which should be, and is, reserved to the trial judge.

The plaintiff shall prepare and submit to the court, on notice to the defendant, a proper order.  