Baush Mach. Tool Co. v. Aluminum Co. of America

• Decision Date: 06 March 1933
• Docket Number: No. 219.,219.
• Citation: 63 F.2d 778
• Parties: BAUSH MACH. TOOL CO. v. ALUMINUM CO. OF AMERICA.
• Court: U.S. Court of Appeals — Second Circuit

63 F.2d 778 (1933)

BAUSH MACH. TOOL CO. v. ALUMINUM CO. OF AMERICA.

No. 219.

Circuit Court of Appeals, Second Circuit.

March 6, 1933.

Edward F. McClennen, of Boston, Mass., Smith, Buchanan, Scott & Gordon, of Pittsburgh, Pa., and Edward Williamson, of Boston, Mass., for appellant.

Cummings & Lockwood, of Stamford, Conn., and E. C. Park, of Boston, Mass., for appellee.

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

MANTON, Circuit Judge.

This appeal is from a decree entered for the appellee which granted relief asked in the bill of discovery, filed in aid of an action for treble damages under the Clayton Act, §§ 4, 12 (15 U. S. C. §§ 15, 22 15 USCA §§ 15, 22). Appellant is a Pennsylvania corporation, and the appellee a Massachusetts corporation. Appellee claims damages to it because the appellant monopolized commerce in crude aluminum among the several states. The complaint charged that, in producing aluminum alloys and in fabricating articles from aluminum and its alloys, the appellant monopolized the industry; that prior to June, 1928, it controlled and operated, through a wholly owned subsidiary corporation, Aluminum Company of Canada, Limited, the only plants producing aluminum in Canada, and that through ownership and financial investment it was the dominant factor in the aluminum industry; that in May, 1928, it caused to be organized under the laws of the Dominion of Canada, Aluminium, Limited, to which it thereafter transferred all of the outstanding stock of its Canadian company and all the stock owned by it in various other companies carrying on operations in Canada and foreign countries; that the stockholders of the appellant received all the shares of Aluminium, Limited, and that the stock ownership rested in the hands of a few individuals; that the relations between the appellant and the foreign producers of the aluminum were not and for many years have not been competitive, and that the appellant, in competition with the appellee, in the sale of aluminum alloys and fabricated articles has offered such articles for sale at prices which would yield no profit to the manufacturer who purchased aluminum at the monopoly price fixed and maintained by the appellant, and that the appellee has consequently been damaged. It is maintained that the appellant has been able to fix prices at an artificial level in the United States to the appellee's damage.

The bill of discovery seeks a disclosure of appellant's cost of production in support of the allegations of the complaint in the action at law. It sets forth in detail that it is practically impossible for the appellee to obtain proof of the appellant's costs by the processes of law, and that such proof cannot be obtained from other sources, and that it requires the aid of a court of equity. Interrogatories are attached to the bill.

A motion to dismiss the bill, made because neither party was a citizen, resident, or inhabitant of Connecticut; also because the action in aid of which the bill purports to be brought, is for a penalty, and therefore a court of equity has not jurisdiction, or should not exercise it, to order discovery in aid thereof, was denied. A motion to strike out the answer resulted in striking out paragraphs 1, 2, 3, 4, 5, 6, and 8, but the balance of the answer stood, and appellant was ordered to answer some of the interrogatories, namely, those relating to costs of appellant. It is from this decree that the appeal was prosecuted.

Appellee argues that the decree is not appealable and asks for its dismissal. The question is open to us. Judicial Code § 128 (U. S. Code title 28, § 225 28 USCA § 225). The appealability of the order is a question addressed to our jurisdiction. The decree directing the appellant to answer some of the interrogatories is final and appealable within section 128 of the Judicial Code (U. S. Code title 28, § 225 28 USCA § 225). Although ancillary for jurisdictional purposes, the order obtained was all that was sought or could be obtained in an equity suit. On appeal, orders dismissing bills of discovery have been affirmed where appealability has not been raised. Durant v. Goss, 12 F.(2d) 682 (C. C. A. 6); Bradford v. Indiana Harbor Belt R. Co., 300 F. 78 (C. C. A. 7); Munger v. Firestone Tire & Rubber Co., 261 F. 921 (C. C. A. 2). Tucker v. Peiler, 297 F. 570 (C. C. A. 2), involved a proceeding to obtain evidence by subpœna, and there we pointed out that orders issued denying or granting subpœna duces tecum are not final and therefore not appealable. But, in the instant case, there is a decree which is final. United States v. River Rouge Improvement Co., 269 U. S. 411, 46 S. Ct. 144, 70 L. Ed. 339; Munger v. Firestone Tire & Rubber Co., supra. The decree completely ends the equity suit. It gives to the appellee the relief asked. The decree must be executed by the appellant, and, if error has been committed in granting it, the appellant is entitled to have it reviewed as it seeks here.

Neither party is a resident of Connecticut, and the suit is not supported under the diversity of citizenship provision of law. U. S. Code title 28, § 112 (28 USCA § 112). But the action at law, in aid of which a bill of discovery was brought, was properly brought in the district of Connecticut where the appellant concededly transacts business. Clayton Act, § 12 (U. S. Code title 15, § 22 15 USCA § 22). Section 12 states that "Any suit, action, or proceeding under the antitrust laws against a corporation may be brought * * * in any district wherein it may be found or transacts business. * * *"

The suit is an action at law for treble damages (Fleitmann v. Welsbach Street Lighting Co., 240 U. S. 27, 36 S. Ct. 233, 60 L. Ed. 505), and, although the language "any suit, action or proceeding" is broad, it is not clear that a bill of discovery may be brought in any district where the corporation is found or does business regardless of the district where the suit at law, which the bill is meant to aid, is pursued. The appellee suggests, and we agree, that we need not decide that section 12 of the Clayton Act offers jurisdiction for the bill of discovery independent of the action at law. It is sufficient for the purpose of this appeal to say that the bill is ancillary or auxiliary to the action at law and is thus supported by the undisputed jurisdiction of the action at law. If the bill is ancillary, the question of independent jurisdiction under section 12 of the Clayton Act is not important. Eichel v. U. S. Fidelity & Guaranty Co., 245 U. S. 102, 38 S. Ct. 47, 62 L. Ed. 177. The bill of discovery is ancillary to the law action. Its very purpose is that of aiding the action at law. Such a bill has been called ancillary in the general sense of that term. Kurtz v. Brown (C. C. A. 3), 152 F. 372, 11 Ann. Cas. 576. Counsel has not cited, nor has our independent search found, any case holding a bill of discovery dependent and ancillary for jurisdictional purposes. However, the bill of discovery is in aid of an action at law in the same district, and we think is dependent and ancillary for jurisdictional purposes, and jurisdiction over the bill may be sustained because of the jurisdiction had over the action at law. The suit is between the same parties, and is in aid of the claim of damages in the action at law, and is brought within the same jurisdiction. These facts are sufficient for jurisdictional purposes. Root v. Woolworth, 150 U. S. 401, 14 S. Ct. 136, 37 L. Ed. 1123; Sherman Nat. Bank v. Shubert Theatrical Co., 247 F. 256 (C. C. A. 2); McCabe v. Guaranty Trust Co., 243 F. 845 (C. C. A. 2); Campbell v. Golden Cycle Mining Co., 141 F. 610 (C. C. A. 8). The nature of the suit, its purposes as the decree entered shows, clearly demonstrates it to be an ancillary suit. Julian v. Central Trust Co., 193 U. S. 93, 113, 24 S. Ct. 399, 48 L. Ed. 629; In re Williams (D. C.) 123...