Cream Top Creamery v. Dean Milk Company
Decision Date | 17 October 1967 |
Docket Number | No. 17225.,17225. |
Parties | CREAM TOP CREAMERY, Kannapel's Dairy, Inc., Plainview Farms Dairy, Walnut Grove Dairy and Oscar Ewing, Inc., Plaintiffs-Appellants, v. DEAN MILK COMPANY, Inc., and Dean Milk Company, Defendants-Appellees. |
Court | U.S. Court of Appeals — Sixth Circuit |
COPYRIGHT MATERIAL OMITTED
Elmer F. Bennett, Washington, D. C., for appellants, Charles I. Dawson, Richard W. Iler, Bullitt, Dawson & Tarrant, Louisville, Ky., Northcutt Ely, Ely & Duncan, Washington, D. C., on the brief.
Francis J. McConnell, Chicago, Ill., for appellees, Thomas C. McConnell, John Borst, Jr., McConnell, Freeman, Curtis & McConnell, Chicago, Ill., Frank A. Garlove, Irwin G. Waterman, Morris, Garlove, Waterman & Johnson, Louisville, Ky., on the brief.
Before PHILLIPS, CELEBREZZE and COMBS, Circuit Judges.
This is a private anti-trust suit commenced in 1959 under the treble damage and injunctive provisions of the Clayton Anti-Trust Act, 15 U.S.C. §§ 15 & 26 and 28 U.S.C. § 1337.
Plaintiffs-appellants allege in their complaint that they have been engaged in the business of selling and delivering dairy products at wholesale to purchasers for resale and at retail to individual homes. The amended complaint avers that continuously since about January 1, 1955, there has been a conspiracy existing among the defendants-appellees, Dean Milk Company, an Illinois corporation (Dean of Illinois), its wholly owned subsidiary, Dean Milk Company, Incorporated, a Kentucky corporation (Dean of Kentucky), Great Atlantic & Pacific Tea Company, a New Jersey corporation (A & P), and the Kroger Company, an Ohio corporation (Kroger), which is in restraint of trade and commerce affecting the purchase, distribution and sale of dairy products between the states of Indiana and Kentucky.
The second amended complaint alleges that from June 1, 1953, up to the date of filing on February 2, 1965, the Dean Milk Companies (Dean of Kentucky and Dean of Illinois) have discriminated systematically in price among their customers in the sale of dairy products by selling such products of a like grade and quality at lower prices to the defendant chain stores than to other purchasers at the same level of trade; that this discrimination substantially lessens competition and tends to create a monopoly in dairy products in the Louisville market area; and that this gives the defendant chain stores an advantage over the smaller operators handling such products.
On February 2, 1965, the District Court entered an order dismissing the suit for want of prosecution as to A & P and Kroger, from which there was no appeal. Dean of Illinois and Dean of Kentucky moved for summary judgment on the basis of the prior dismissal with prejudice of a State Court action styled Cherokee Sanitary Milk Co. v. Dean Milk Inc., No. 17,798, in the Jefferson Circuit Court of Louisville, Kentucky.
For purposes of identification the present action will be referred to as the "Cream Top case" and the State Court action as the "Cherokee case."
The complaint in the Cherokee suit alleged:
The amended complaint in that action alleged:
"In addition to the illegal acts charged in our original complaint, the defendant, during all of the times mentioned in the original complaint, has given and is now giving to some of its customers secret rebates, refunds, commissions, unearned discounts, services and privileges not given to all of its customers purchasing on like terms and conditions, by reason of all of which those favored customers of the defendant have been able to purchase packaged milk from defendant at less cost to them than the established price at which defendant professes to sell same to all of its customers purchasing on like terms and conditions."
The District Court held that Dean of Kentucky was "wholly owned by and its affairs were controlled, managed and directed by Dean of Illinois" and "that the plaintiffs in this action were parties in name or actively participated in the Cherokee suit." The motion for summary judgment also alleged that two other cases involving the same subject matter as the Cream Top case had been filed in the Jefferson Circuit Court. Those cases, Hy-Grade Dairies, Inc. v. Dean Milk Co. Inc., No. 338679, and Hy-Grade Dairies Inc. v. Dean Milk Co. Inc., No. CR 1135, were dismissed without prejudice on motion of plaintiffs.
The District Court granted defendants' motion for summary judgment, holding that the dismissal with prejudice of the Cherokee case was tantamount to a trial and final judgment and hence was res judicata in the instant case.
We reverse.
The only issue involved in this appeal is the effect to be given to a prior dismissal with prejudice of a State Court action in a subsequent anti-trust suit in a Federal District Court.
The doctrine of res judicata is that a judgment on the merits in a prior suit involving the same parties or their privies bars a subsequent suit based upon the same cause of action. Lawlor v. National Screen Service, 349 U.S. 322, 326, 75 S.Ct. 865, 99 L.Ed. 1122. "Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties." Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525, 51 S.Ct. 517, 518, 75 L.Ed. 1244.
The related doctrine of collateral estoppel is applicable in the following situation:
Cromwell v. County of Sac., 94 U.S. 351, 353, 24 L.Ed. 195.
In Lawlor v. National Screen Service, supra, the Supreme Court distinguished the doctrines of res judicata and collateral estoppel as follows:
...
To continue reading
Request your trial-
Securities and Exchange Commission v. Crofters, Inc.
...of Florida Inc., 349 F.2d 595 (C.A.5, 1965); Towle v. Boeing Airplane Co., 364 F.2d 590 (C.A.8, 1966); Cream Top Creamery v. Dean Milk Co., 383 F.2d 358 (C.A.6, 1967); Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 421 F. 2d 1313 (C.A.5, 1972); also see 1 D Moore's, Fede......
-
Marrese v. American Academy of Orthopaedic Surgeons
...that the holding in Becher was limited to the preclusive effect of findings of fact. As the Sixth Circuit, in Cream Top Creamery v. Dean Milk Co., 383 F.2d 358 (6th Cir.1967), explained the Becher holding:Thus if the first suit is brought in a State Court, this will not mean necessarily tha......
-
Nash County Bd. of Educ. v. Biltmore Co.
...We hold, therefore, that this case was not barred by the splitting prohibition." To the same effect is Cream Top Creamery v. Dean Milk Co., 383 F.2d 358, 363 (6th Cir. 1967). In this suit, however, under the state statute, modeled as it is after the federal statute and offering the same rig......
-
Feldman v. Gardner
...federal forum. Cf. DeWitt Motor Co. v. Chrysler Motors Corp., 391 F.2d 912 (6th Cir. 1968) (no res judicata); Cream Top Creamery v. Dean Milk Co., 383 F.2d 358 (6th Cir. 1968) (same).204 Angel v. Bullington, 330 U.S. 183, 190-191, 67 S.Ct. 657, 661, 91 L.Ed. 832, 837-838 (1947); see Cromwel......