Reid v. Doubleday & Co.
| Decision Date | 30 December 1952 |
| Docket Number | Civ. 6718. |
| Citation | 109 F. Supp. 354 |
| Parties | REID v. DOUBLEDAY & CO., Inc. et al. |
| Court | U.S. District Court — Northern District of Ohio |
Edward G. Harris, of Harris & Sell, Toledo, Ohio, for plaintiff.
Donald F. Melhorn, of Marshall, Melhorn, Bloch & Belt, Toledo, Ohio, for defendant.
This matter comes before the Court on plaintiff's motion to strike from defendant's answer, and motion for a more definite statement.
Memoranda are filed in support of and in opposition to the motions as required by the rule.
In specification 1 of the motion to strike, plaintiff seeks to have stricken out, under Rule 12(f) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the phrase "as a sub-jobber".
Rule 8 provides, with reference to defenses:
"A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies".
Rule 12 (f) provides that upon a motion made by a party the court "may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter".
Paragraph 1 of the complaint and the corresponding paragraph of the answer, in which the objected to words appear, are as follows:
Complaint Answer
1. "That at all times between the "1. Denies the allegations of this
3rd day of April, 1941 and the date paragraph except that it admits at all
of the filing of this complaint, the times between the 3rd day of April
plaintiff was engaged in the business 1941, and the date of filing of the
of being a wholesale jobber of complaint the plaintiff was engaged
books, printed publications and material in the business of selling books as
published for resale or consumption a sub-jobber, and during said times
by the general public, and was doing business under the name
during said times was doing business and style of Edwin M. Reid, doing
under the name and style of Edwin business during said time at 1825
M. Reid, doing business as College Collingwood Avenue, Toledo, Ohio
Book Exchange; and, plaintiff conducted 1114 Jackson Street, Toledo, Ohio
said business during said time and 4558 Monroe Street, Toledo
at 1825 Collingwood Avenue, Toledo, Ohio."
Ohio; 1114 Jackson Street, Toledo
Ohio; and 4558 Monroe Street, Toledo,
Ohio."
It does not seem to us that the words objected to come within the meaning of Rule 12 (f). The clause in which the words appear is not a statement of defense, but a statement of an alleged fact. It does not seem redundant or scandalous. Whether or not it is material or pertinent does not appear at this time.
The same comment applies to specification 6, in which plaintiff seeks to have stricken out from paragraph 26 of the answer the words: "except that it admits that plaintiff has requested defendant to grant to him the same prices and terms as then being offered by defendant to its jobbers", following a general denial of the allegations of paragraph 26 of the complaint.
The motion of plaintiff for more definite statement, as an alternative to specification 1, asks the Court for an order requiring the defendant to make definite the meaning of the words "as a sub-jobber" in paragraph 1 of the first defense. We are of the opinion that this motion should be overruled, for the reason that under Rule 12 (e) a motion for a more definite statement may be made only to a pleading to which a responsive pleading is permitted, and under Rule 7 (a) a responsive pleading is not permitted to the answer unless ordered by the Court. The information desired may no doubt be obtained by interrogatory or other discovery means under the rules.
Specification 2 seeks to have stricken out paragraph 32 of the second defense, reading as follows:
This defense is based upon Sec. 2(d) of the Robinson-Patman Price Discrimination Act, Title 15, § 13 (d), U.S.C.A., reading as follows:
"(d) It shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities."
Plaintiff contends that the defense is insufficient in that the proviso in the statute states the payment or consideration for services or facilities furnished by customers shall be "available on proportionally equal terms to all other customers competing in the distribution of such products or commodities", whereas the language of the defense is that such payment "has been made available on proportionally equal terms to plaintiff." We are unable to agree with this contention, for the reason stated in the case of Midland Oil Co. v. Sinclair Refining Co., D.C.Ill.1941, 41 F. Supp. 436, at page 438, wherein the Court said:
It seems to us the gravamen of the complaint is that the plaintiff was not accorded by the defendant equal treatment with other customers of the defendant of the same class, and that it is immaterial to the issues here whether defendant made equal terms available to all other competing customers.
Specification 3 seeks to have stricken out paragraph 33 of the third defense, reading as follows:
This defense seems to be pleaded in the language of the statute, Title 15, § 13 (b), reading as follows:
"* * * That nothing contained in sections 12, 13, 14-21, and 22-27 of this title shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor."
In the case of Standard Oil Co. v. Federal Trade Commission, 1951, 340 U.S. 231, 71 S.Ct. 240, 248, 95 L.Ed. 239, the Court held:
"(c) There has been a widespread understanding that, under the Robinson-Patman Act, it is a complete defense to a charge of price discrimination for the seller to show that its price differential has been made in good faith to meet a lawful and equally low price of a competitor; and this Court sees no reason to depart now from that interpretation."
It seems to us that this specification should be overruled.
In specification 4, plaintiff seeks to have stricken out the defense of res adjudicata set forth in paragraph 34 of the fourth defense, reading as follows:
It seems to us whether or not the defense of res adjudicata is a good defense in this case depends upon evidence as to the issues involved and the determination made in the prior action, and perhaps other matters of evidence, and that the question cannot be determined upon this motion.
In specification 5, plaintiff seeks to have stricken out paragraph 35 of the fifth defense, involving the statute of limitations of Ohio which may be applicable, reading as follows:
This action is brought under the Robinson-Patman Act, 15 U.S.C.A. § 13 et seq., which...
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...statute of limitations would be given the mitigating construction required by that doctrine." (Italics supplied.) In Reid v. Doubleday & Co., Inc. et al., 109 F.Supp. 354, an Ohio District Court held, in "The majority (of Federal courts) have held that (a triple damage action) * * * was not......
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