Original Ballet Russe v. Ballet Theatre

• Decision Date: 02 February 1943
• Docket Number: No. 106.,106.
• Citation: 133 F.2d 187
• Parties: ORIGINAL BALLET RUSSE, Limited, v. BALLET THEATRE, Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

133 F.2d 187 (1943)

ORIGINAL BALLET RUSSE, Limited, v. BALLET THEATRE, Inc., et al.

No. 106.

Circuit Court of Appeals, Second Circuit.

February 2, 1943.

A. Walter Socolow, of New York City (Alexander D. Diamond, of New York City, of counsel), for appellant.

Cohen, Cole, Weiss & Wharton, of New York City, for appellee Ballet Theatre, Inc.

Garfield, Wrubel & Lazarus, of New York City, for appellee German Sevastianov.

Elias Lieberman, of New York City, for appellees Hurok Attractions, Inc., and Solomon Hurok.

Harry J. Leffert, Robert H. Wrubel, and Vinson C. Aronson, all of New York City, of counsel, for appellees.

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

SWAN, Circuit Judge.

Original Ballet Russe, Ltd., incorporated under the laws of England and engaged in the business of producing ballet performances throughout the world, brought this action in the court below against Ballet Theatre, Inc., alleged to be a competitor of plaintiff, and three other defendants. Federal jurisdiction rests on diverse citizenship. The complaint alleged that the defendants maliciously formed "the deliberate design and purpose by unlawful means to destroy plaintiff's business * * * and to drive it from the theatrical world"; in furtherance of such design and purpose they induced certain dancers to break their employment contracts with plaintiff and maliciously circulated false statements to injure plaintiff's reputation; and by reason of their acts plaintiff was damaged to the extent of at least $100,000. Before answer the defendants moved for an order requiring the plaintiff to amend its complaint so as to state and number separately the various causes of action set forth therein. Being of the opinion that the complaint alleged at least two separate and distinct torts (defamation of plaintiff and inducing its employees to break their contracts) the district judge granted the motion. An amended complaint was then filed which the court found subject to the same infirmities as the original, and a second order was entered directing compliance with the former order under pain of having the amended complaint dismissed. The plaintiff declining to amend further, a judgment of dismissal was entered, from which the plaintiff has appealed.

Rule 10(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that all averments of claim or defense shall be made in numbered paragraphs and "each claim founded upon a separate transaction or occurrence * * * shall be stated in a separate count * * * whenever a separation facilitates the clear presentation of the matters set forth." Under Rule 41(b) a defendant may move for dismissal of an action for failure of the plaintiff to comply with the rules or any order of court. If the district judge was correct in his application of Rule 10(b) to the original and amended complaints, dismissal of the action under Rule 41(b) was within his discretion. Blake v. De Vilbiss Co., 6 Cir., 118 F.2d 346.

For the traditional and hydra-headed phrase "cause of action"^* the Federal Rules of Civil Procedure have substituted the word "claim." It is used to denote the aggregate of operative facts which give rise to a right enforceable in the courts. See 1 Moore, Federal Practice, pp. 3, 145-150, 605; Clark, Code Pleading, §§ 19, 70. Under Rule 10(b) a separation of claims into separate counts is mandatory only when necessary to facilitate clear presentation. See Moore, supra, p. 607. Strictly, therefore, the issues presented are (1) whether the complaint and amended complaint allege but a single claim or cause of action and (2), if more than one claim is alleged, whether a separation of the claims is required to facilitate clear presentation of the matters set forth.

The original complaint alleged in substance that the defendants conspired to ruin the plaintiff's business of producing ballets, and in furtherance of the conspiracy committed tortious acts by circulating defamatory statements and inducing employees of plaintiff to break their contracts and enter the employ of its competitor, Ballet Theatre, Inc. The amended complaint is framed along identical lines but amplifies the details of the acts done by the defendants in carrying out the conspiracy and shows that tortious conduct by one of them, Hurok Attractions, Inc., was also a breach of its contract to manage performances of the plaintiff's ballet company on certain tours. The ad damnum was largely increased. It is the defendants' contention that where a complaint alleges a conspiracy pursuant to which actionable torts are committed, then the cause or causes of action are the independent torts and not the conspiracy. This view was adopted by the district court.

We agree that where conduct is tortious in itself allegations that it was committed pursuant to a conspiracy add nothing to the complaint, although conduct otherwise innocent may sometimes become actionable if done in concert. Green v. Davies, 182 N.Y. 499, 505, 75 N.E. 536, 3 Ann.Cas. 310; Lewis Invisible Stitch Mach. Co. v. Columbia Mfg. Co., 2 Cir., 80 F.2d 862, 864; A. L. I. Torts, §§ 765, 775. But we cannot agree that the claim for relief set out in plaintiff's original and amended complaints was one "for conspiracy." The cause of action alleged is the intentional destruction of plaintiff's business without justifiable excuse. All the acts of defendants are alleged to have been directed to this end. The charge could have been laid against Ballet Theatre, Inc., alone. Except in so far as non-tortious conduct may be rendered actionable by concert, allegations of conspiracy neither add to nor detract from the wrong of intentional and unjustifiable destruction of a person's business. They are important only to show that the wrong was committed jointly by the defendants so that the acts of one may be imputed to the others because of their common purpose and intent. Brackett v. Griswold, 112 N.Y. 454, 466, 20 N.E. 376; Bob v. Hecksher, 235 App.Div. 82, 83, 256 N. Y.S. 126. Recognition of the cause of action under discussion goes back at least to the early case of Keeble v. Hickeringill, 11 East 574n. The philosophy underlying it has been brilliantly expounded in Oliver Wendell Holmes' famous essay, "Privilege, Malice and Intent," 8 Harv.L.Rev. 1. It has been adopted in the American Law Institute's Restatement of the Law of Torts, Division Nine, "Interference with Business Relations." We do not doubt that the law of New York also recognizes the tort of wrongful interference with one's business. See Opera on Tour, Inc. v. Weber, 285...