
    RICHARDS v. MARK C. WALKER & SONS CO. et al.
    Civ. No. 130.
    United States District Court D. Nebraska, McCook Division.
    Sept. 26, 1949.
    John P. Jensen, Kenneth Dryden and Richard A. Dier, all of Kearney, Neb., for plaintiff.
    McCormack & McCormack, of Omaha, Neb., and Thomas F. Colfer, of McCook, Neb., for defendant Mark C. Walker & Sons Company.
    Joseph T. Votava, U. S. Atty., for the District of Nebraska, Omaha, Neb., for defendant Department of The Army Corps, of Engineers.
   DELEHANT, District Judge.

Certain motions are before the court in this case. Ruling may be made upon them without further delay.

The defendant, The Department of the Army Corps of Engineers, has moved for additional time within which to “answer or otherwise plead.” Much more time than it requested has elapsed since the service and filing of the motion. Besides, counsel for the moving entity has informed the court that no further time is required for its purposes. Its motion is therefore, being denied and overruled. But, to eliminate any question of the appropriate time for the service and filing of the pleading, the order of the court grants 15 days from this date for such service and filing.

Then, the defendant, Mark C. Walker and Sons Company moves for an order requiring a more definite statement (a) touching the manner of construction of a dam allegedly flooding lands of the plaintiff, and (b) itemizing the elements of his alleged damage to specific crops. Passing over the failure of the moving party strictly to conform in the framing of his motion to Rule 12(e) Federal Rules of Civil Procedure, 28 U.S.C.A., the motion must be denied and overruled upon its merits. The manner of construction of the dam must be peculiarly within the moving defendant’s knowledge. And the extent of damage is sufficiently stated to enable the defendant Walker & Sons Company to prepare a responsive pleading. In such circumstances, a motion of the character before the court is not well taken. See discussion of this court in Mitchell v. Brown, D.C.Neb., 2 F.R.D. 325 and United States v. Association of American Railroads, D.C.Neb., 4 F.R.D. 510.

The moving defendant may be entitled to a precise statement by the pláintiff upon each or either of the points mentioned in its motion in the course of its preparation for trial. But material of that nature is obtainable in the practice in this court under Rules 26, 33, 34 and 36, and, in proper circumstances, Rule 16, of the Federal Rules of Civil Procedure.

The defendant, Walker and Sons Company, is being required to serve and file its answer within 15 days from this date.  