Boro Hall Corporation v. General Motors Corporation

• Citation: 124 F.2d 822
• Decision Date: 08 January 1942
• Docket Number: No. 94.,94.
• Parties: BORO HALL CORPORATION v. GENERAL MOTORS CORPORATION et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

124 F.2d 822 (1942)

BORO HALL CORPORATION v. GENERAL MOTORS CORPORATION et al.

No. 94.

Circuit Court of Appeals, Second Circuit.

January 8, 1942.

Harry J. McDermott, of Brooklyn, N.Y. (Harry J. McDermott and Frederick S. Martyn, both of Brooklyn, N. Y., of counsel), for plaintiff-appellant.

John Thomas Smith and Albert M. Levert, both of New York City (Albert M. Levert and Gordon H. Brown, both of New

York City, of counsel), for defendants-appellees.

Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The motion to dismiss the complaint was accompanied by an affidavit which in turn was answered by the plaintiff without raising any material issues of fact. We see no reason why the application should not be treated as one for summary judgment under Section 56 of the Rules of Civil Procedure, 28 U.S.C. A. following section 723c. But even if the motion were regarded as made under Section 12(b) of the rules, we have held that affidavits might be employed. Central Mexico Light & Power Co. v. Munch, 2 Cir., 116 F.2d 85, 87. See also Gallup v. Caldwell, 3 Cir., 120 F.2d 90, 92. In either view of the case we think judgment was properly ordered for the defendant.

The first cause of action set forth is to recover treble damages against the defendants under the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, on the ground that the defendants refused to permit the plaintiff, who had agreed to purchase Chevrolet cars from the General Motors Sales Corporation, to establish a used car outlet, lot or salesroom outside the plaintiff's so-called "Zone of Influence", which the seller had set up in a limited area in the downtown section of Brooklyn, except with the approval of one K. M. Chase, the Regional Manager of Chevrolet. It also alleged that, after the refusal to refrain from interfering with the plaintiff's right to trade in used cars, the latter appealed to the Dealers Relations Board of the defendant, General Motors Corporation, a tribunal created to review administrative decisions by company officials. Finally it alleged that the decision of that Board restrained the trade of the plaintiff by providing that a location for a used car outlet must not be unduly prejudicial to the interest of other dealers. It is to be observed that the uncontradicted affidavit filed on behalf of the defendants negatives the claim that used cars could only be sold by the plaintiff within the "Zone of Influence." Indeed, on May 9, 1940, the defendant Sloan notified the plaintiff that the Board understood that a used car lot located outside the "Zone of Influence" would be agreed upon but that the location should not be unduly prejudicial to the interests of other dealers.

The affidavit of Beardslee, in support of defendants' motion, states that the exhibits attached set forth the entire relations of the defendants with the plaintiff in respect to the matters referred to in the complaint. In the papers submitted for the plaintiff it is said that its president Giordano did not deny or contradict the statements contained in the affidavit submitted on behalf of the defendants, nor impugn the authenticity or contents of any of the letters and documents annexed thereto, except as set forth in his affidavit, which however contained no denial of any material matter. We think the effect of the proof is that General Motors Sales Corporation required no more than that the location of a used car depot should be fixed by agreement at such a place as would not unduly prejudice other dealers who did business with the seller. We do not regard this as an unreasonable interference with competition or an unfair arrangement between the plaintiff and General Motors Sales Corporation. The latter had the right under its contract to discontinue dealings with the plaintiff on 30 days' notice. Under such circumstances we can see no reason why it should not be allowed to fix a location for the sale of used cars at a place that did not unduly affect other dealers.

There was no proof that the General Motors Sales Corporation required a location for the sale of used cars that was unfair to the plaintiff, or indeed that it imposed any actual restriction on the sale of such cars. Chase, the Regional Manager, was not shown to have made any unreasonable demands. Accordingly the first cause of action was properly dismissed.

It is argued that the plaintiff should have leave to amend by alleging that restrictions in the sale of used cars so affected sales of Chevrolet cars shipped in interstate commerce that...