Boston Medical Supply Co. v. Lea & Febiger

• Decision Date: 04 April 1952
• Docket Number: No. 4608.,4608.
• Citation: 195 F.2d 853
• Parties: BOSTON MEDICAL SUPPLY CO. v. LEA & FEBIGER.
• Court: U.S. Court of Appeals — First Circuit

195 F.2d 853 (1952)

BOSTON MEDICAL SUPPLY CO. v. LEA & FEBIGER.

No. 4608.

United States Court of Appeals First Circuit.

April 4, 1952.

Allan R. Rosenberg, Boston, Mass., for appellant.

Warren F. Farr, Boston, Mass. (Ropes, Gray, Best, Coolidge & Rugg, Boston, Mass., and Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., on the brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

Boston Medical Supply Company, appellant herein, a Massachusetts corporation engaged in Boston in the business of selling medical and dental books and supplies at retail, filed a complaint in the District Court for the District of Massachusetts, seeking an injunction and treble damages under § 4 of the Clayton Act, 15 U.S.C.A. § 15. Named as defendants were appellee Lea & Febiger, a Pennsylvania partnership which publishes medical and dental books in Philadelphia, and five others: Brown and Connolly, Inc., and E. F. Mahady & Co., Massachusetts corporations which sell medical and dental books and supplies in Boston at wholesale and also at retail; Viola H. Broadbent, a resident of Massachusetts who retails medical and dental books and supplies at Tufts Medical School both on her own account and as selling agent of Brown and Connolly, Inc.; and The Williams and Wilkins Co., a Maryland corporation, and W. B. Saunders Co., a Pennsylvania corporation, each, like appellee, engaged in publishing medical and dental books.

The complaint alleges the following facts:

Appellant is in competition with the defendants Brown and Connolly, Inc., E. F. Mahady & Co., and Viola H. Broadbent, in selling at retail medical and dental books and supplies.

Defendants E. F. Mahady & Co. and Brown and Connolly, Inc., together control the wholesale supply and distribution in the Boston area of a majority of the medical and dental books and textbooks published in this country, and are the exclusive wholesalers in this area for several publishers, including the defendant publishers.

A large part of appellant's business consists in selling medical and dental books and supplies to students and professors in medical schools in the Boston area. Success in this trade depends upon having a complete supply of the books currently used in the schools, for sales of books represent a large part of total sales, and students, as a matter of convenience, customarily purchase all the books and other supplies which will be needed during a semester from a retailer who carries a complete line.

Late in 1949 appellant moved its business from less desirable quarters to a location close to Tufts Medical School and Pratt Diagnostic Hospital, thereby improving its competitive position with respect to defendants Brown and Connolly, Inc., E. F. Mahady & Co., and Viola H. Broadbent, in retail sales. Those three defendants, in order to meet this sharpened competition, conspired together and with the defendant publishers to restrain and monopolize interstate trade and competition in medical and dental books and medical supplies in the Boston area by boycotting appellant and refusing to supply books to it.

Service of the summons and the complaint upon appellee was made by serving, as agent for appellee, the defendant Brown and Connolly, Inc., through its president, William J. Brown. Appellee moved to quash the service and to dismiss the complaint for want of jurisdiction and for improper venue. After a hearing upon affidavits and answers to written interrogatories this motion was granted by the district court. Thereupon, in accordance with Rule 54(b), F.R.C.P., 28 U.S.C., and "upon the express determination that there is no just reason for delay and that judgment should be entered," a "Final Judgment as to Defendant Lea & Febiger", dismissing the complaint, was entered. From this judgment the present appeal is prosecuted.

At the outset, although appellee has not urged the point upon us, we note a possible question as to our jurisdiction to hear the appeal. With certain exceptions not here pertinent, our sole power to review the district courts is that granted by 28 U.S.C. § 1291 to hear "appeals from all final decisions * * *." Where, as here, several defendants are charged with concerted wrongdoing, there is a considerable body of authority predating the 1948 amendment to Rule 54(b), F.R.C.P. indicating that, so long as the suit remained pending as to any of the defendants jointly charged, an order dismissing some of them was not appealable as a "final decision", whether the dismissal was on jurisdictional or venue grounds or on the merits. Hohorst v. Hamburg-American Packet Co., 1893, 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443; Hunter v. Federal Life Ins. Co., 8 Cir., 1939, 103 F.2d 192; Street & Smith Publications, Inc. v. Spikes, 5 Cir., 1939, 107 F.2d 755; Porter v. American Distilling Co., Inc., 2 Cir., 1946, 157 F.2d 1012; Studer v. Moore, 2 Cir., 1946, 153 F.2d 902; Kuhn v. Canteen Food Service, Inc., 7 Cir., 1945, 150 F.2d 55; Hunteman v. New Orleans Public Service, Inc., 5 Cir., 1941, 119 F.2d 465, certiorari denied 1941, 314 U.S. 647, 62 S.Ct. 89, 86 L.Ed. 519; Atwater v. North American Coal Corp., 2 Cir., 1940, 111 F.2d 125; Fields v. Mutual Ben. Life Ins. Co., 4 Cir., 1938, 93 F.2d 559. See also Reeves v. Beardall, 1942, 316 U.S. 283, 286, 62 S.Ct. 1085, 86 L.Ed. 1478.

We are of the opinion, however, that these cases are no longer controlling. Rule 54(b), as amended in 1948, reads as follows:

"Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims."

It is our view that when a district judge finally disposes of one of several claims in suit and certifies that he has done so as contemplated by the rule, his judgment or order on that claim becomes a "final decision" within the meaning of § 1291 of the Judicial Code and is immediately appealable. The district court having disposed of the claim against appellee in this fashion, the appeal is properly before us. Extended discussion of the point would be superfluous, since we are in full agreement with the opinion by Judge Maris, speaking for the Court of Appeals of the Third Circuit, in Bendix Aviation Corp. v. Glass, 195 F.2d 267.

We turn now to the merits.

While a criminal prosecution to punish a conspiracy to restrain interstate commerce may be brought, as against all the conspirators, in any district where overt acts in furtherance of the conspiracy have been committed, see United States v. Socony-Vacuum Oil Co., Inc., 1940, 310 U.S. 150, 250 et seq., 60 S.Ct. 811, 84 L.Ed. 1129, the Congress has seen fit to impose more restrictive venue requirements as applied to suits by private parties to redress injuries resulting from such conspiracies.

Section 4 of the Clayton Act reads as follows, 38 Stat. 731, 15 U.S.C.A. § 15:

"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney\'s fee."

Appellant asserts that venue as to appellee is properly laid in the district of Massachusetts under this section, in that Brown and Connolly, Inc., and E. F. Mahady & Co., both of which are clearly present in Massachusetts for venue purposes, are "agents" of appellee within the meaning of § 4.

The affidavits and answers to interrogatories upon which the issue was tried show that neither of the Massachusetts corporations is affiliated with appellee. Each independently operates its own business, pays its own expenses, solicits its own customers, and conducts its affairs without direction, control, or interference by appellee, selling at wholesale and retail books published by numerous...