Fleischer v. AAP, INC.

• Decision Date: 15 July 1959
• Citation: Fleischer v. AAP, INC., 180 F. Supp. 717 (S.D. N.Y. 1959)
• Parties: Dave FLEISCHER, Individually and as trustee in dissolution of Fleischer Studios, Incorporated, a Florida corporation, Plaintiff, v. A.A.P., INC., Associated Artists Productions, Inc., U.M. & M.T.V. Corp., W.P. I.X., Inc., Paramount Pictures, Inc., Paramount Pictures Corporation, Dumont Broadcasting Corporation, Flamingo Films, Inc., King Features Syndicate, Inc, Fleischer Studios, Incorporated, a New York corporation, Max Fleischer, individually and as co-trustee with plaintiff of Fleischer Studios, Incorporated, a Florida corporation, Defendants.
• Court: U.S. District Court — Southern District of New York

180 F. Supp. 717

Dave FLEISCHER, Individually and as trustee in dissolution of Fleischer Studios, Incorporated, a Florida corporation, Plaintiff, v. A.A.P., INC., Associated Artists Productions, Inc., U.M. & M.T.V. Corp., W.P. I.X., Inc., Paramount Pictures, Inc., Paramount Pictures Corporation, Dumont Broadcasting Corporation, Flamingo Films, Inc., King Features Syndicate, Inc, Fleischer Studios, Incorporated, a New York corporation, Max Fleischer, individually and as co-trustee with plaintiff of Fleischer Studios, Incorporated, a Florida corporation, Defendants.

United States District Court S. D. New York.

July 15, 1959.

COPYRIGHT MATERIAL OMITTED

Gustave B. Garfield, New York City, for plaintiff.

Mendes & Mount, New York City, Daniel Huttenbrauck, New York City, of counsel, for defendant W. P. I. X., Inc.

Phillips, Nizer, Benjamin, Krim & Ballon, New York City, Seymour Shainswit, New York City, of counsel, for defendants Paramount Pictures, Inc., Paramount Pictures Corporation and Flamingo Films, Inc.

McCauley, Henry & Brennan, New York City, for defendant King Features Syndicate, Inc.

PALMIERI, District Judge.

Before turning to the merits of the motions before the Court, plaintiff's application to disqualify the Court on the ground of "personal bias or prejudice * * * against him," 28 U.S.C. § 144 (1952), must be discussed. The application was made under the following circumstances. During oral argument counsel for one of the defendants herein stated that the Court of Appeals, in an opinion on another aspect of this case,¹ had rebuked plaintiff's counsel.² Plaintiff's counsel rose to what he termed a "point of personal privilege," stating that the remark referred to was obiter, that it was not concurred in by a majority of the Court of Appeals, and that it was addressed to plaintiff and not to counsel. The Court stated its belief that counsel had been rebuked. The application for disqualification followed. The oral argument was then adjourned to permit plaintiff's counsel to file the affidavit required by 28 U.S.C. § 144 (1952). The affidavit was filed and, after consideration, the Court advised counsel of its intention to deny the application, and to advert to the matter when the opinion on the motions was handed down. The oral argument was then concluded.

The affidavit recites the occurrence on the oral argument as set forth above, repeats counsel's interpretation of the Court of Appeals' remark, and states that counsel feels that he and his client cannot receive a "fair hearing" if the Court believes that counsel was rebuked by the Court of Appeals. It may be that the remark was dictum, in that it was not necessary to the decision dismissing the appeals,³ but that does not make it any less a rebuke. Indeed, it is more forceful if the Court saw fit to make it although it was not required. The opinion of Chief Judge Clark was the opinion of the Court,⁴ and the remark was plainly addressed to counsel and not to plaintiff.⁵ It may be that actions of a litigant have been termed "unworthy," but I cannot recall such a use of the word and I know of no formulated standard by which litigants' conduct is measured. There is a well-known standard for professional conduct, however, and it is not unusual to term violations of that standard "unworthy" of members of the profession.⁶ Moreover, assuming that the Court's construction of the Court of Appeals' remark is in error, such error is not a ground for disqualification. Disqualification is proper when an affidavit has been filed alleging facts that would tend to show that a judge has a personal "bent of mind" for or against a litigant. An allegedly incorrect interpretation of a portion of a higher court's opinion does not tend to show such prejudice. Berger v. United States, 1921, 255 U.S. 22, 33-34, 41 S.Ct. 230, 65 L.Ed. 481; Foster v. Medina, 2 Cir., 1948, 170 F.2d 632, certiorari denied 1949, 335 U.S. 909, 69 S.Ct. 412, 93 L.Ed. 442; Knapp v. Kinsey, 6 Cir., 232 F.2d 458, 466, certiorari denied 1956, 352 U.S. 892, 77 S.Ct. 131, 1 L.Ed.2d 86; Cole v. Loew's, Inc., D.C. S.D.Cal.1948, 76 F.Supp. 872, 876-877. Disqualification of a judge upon an affidavit such as has been filed here would not be consonant with a proper disposition of the Court's business. See United States v. Valenti, D.C.D.N.J.1954, 120 F.Supp. 80, 83 note 2 and text thereat; cf. In re J. P. Linahan, Inc., 2 Cir., 1943, 138 F.2d 650. The affidavit does not allege facts within the requirements of 28 U.S.C. § 144 (1952). The application for disqualification is, accordingly, denied.

The amended complaint is a thirty page document. It is hardly a model of the form of pleadings which should be utilized under the Federal Rules. It is neither "a short and plain statement of the claim," Fed.R.Civ.P. 8(a) (2), 28 U.S.C., nor is it "simple, concise, and direct." Fed.R.Civ.P. 8(e) (1). It has been met by a notice of motion which requires more than twenty-two pages to set forth, in the main, the portions of the amended complaint which are sought to be stricken under Fed.R.Civ.P. 12(f). Such a motion is not favored, for "we are not conducting exercises in pleading * * *." Nagler v. Admiral Corp., 2 Cir., 1957, 248 F.2d 319, 325.

The motion to strike may be conveniently divided into three categories. Portions of the amended complaint are sought to be stricken on the ground that they are verbose, conclusory, immaterial, or evidentiary. Before it may be determined that a portion of a complaint is immaterial it must clearly appear that the matter alleged can have no possible bearing on the issues of the trial, a question which is most difficult to determine from the face of the amended complaint.⁷ Even if that determination is made, immaterial allegations, and likewise verbose, conclusory, or evidentiary allegations, need not be stricken unless their presence in the complaint prejudices the defendant. It would not be fruitful nor would it, in the long run, advance the interests of any of the parties to this litigation, for the Court to try to narrow and delimit the issues of this litigation at this point in the proceedings, see Nagler v. Admiral Corp., supra, nor is any prejudice shown because of the inclusion in the amended complaint of the verbose, immaterial, conclusory, or evidentiary matter. See, generally, 2 Moore, Federal Practice par. 12.212 (2d ed. 1948) and cases there cited.

A second group of portions of the amended complaint is sought to be stricken on the ground that these portions are contradicted by documentary evidence. The defendants have confused the grounds for a motion to strike, however, which do not include falsity of the matter alleged, Fed.R.Civ.P. 12(f); cf. United States v. Arnhold & S. Bleichroeder, Inc., D.C.S.D.N.Y.1951, 96 F.Supp. 240, 243, with a motion for summary judgment, which defendants insist their present motions are not.⁸

Finally, portions of the amended complaint are sought to be stricken on the ground that they are scandalous. These portions refer to the alleged actions of counsel for some of the defendants and are relevant only to the motion to disqualify certain of the defendants' counsel previously mentioned. If such allegations were properly to be placed in a complaint I would hesitate to strike them, for the decision not to disqualify is "not of final character, and is subject to reconsideration or change as new facts may develop."⁹ The disqualification of counsel is collateral to the issues to be litigated and allegations which deal with counsel's actions in the past have no place in the amended complaint. Accordingly, I have set forth in the margin those portions of the amended complaint which are to be stricken.¹⁰ The motion to strike is in all other respects denied.

Defendants also move for dismissal on the ground that the amended complaint does not comply with the requirements of Fed.R.Civ.P. 8. We have been taught that such dismissals are not proper; and I can conceive of no distinction between a dismissal on the ground that too little is pleaded and a dismissal on the ground that too much is pleaded. Cf. Nagler v. Admiral Corp., supra. To the extent that the motion to dismiss is based on the presence in the amended complaint of scandalous and vituperative matter, the decision on the motion to strike cures that defect.

I turn now to a discussion of the motions to dismiss on the merits, motions which are limited to the second and third causes of action set forth in the amended complaint. The second cause of action seeks damages arising from an alleged conspiracy to violate the antitrust laws. Clayton Act, § 4, 38 Stat. 731 (1914), 15 U.S.C.A. § 15. Plaintiff seeks the recovery individually and on behalf of Fleischer Studios, Inc., a Florida corporation which was dissolved, as the complaint alleges, in 1946. The second cause of action does not contain, however, any allegation of facts tending to show any direct injury to plaintiff's commerce as an individual, and it is well established that a shareholder is not entitled to recover, by individual suit, his share of the loss his corporation may have suffered because of a conspiracy to violate the antitrust laws. E. g., Bookout v. Schine Chain Theatres, Inc., 2 Cir., 1958, 253 F.2d 292. Whatever claim the trustees of the Florida corporation may have had, on behalf of the corporation, has abated, the corporation having been dissolved more than three years before this suit was commenced. Walder v. Paramount Publix Corp., D.C.S.D.N.Y.1955, 132 F. Supp. 912, 917-919.¹¹ Plaintiff's attempt to distinguish the Florida decisions on which the Walder holding was partially based, 132 F.Supp. at page 919, note 14, is without merit. Finally, plaintiff cites no authority, and I know of none, for the proposition he advances, that application of the Walder decision deprives him, or the dissolved corporation, of property in violation of U.S.Const. Amend. XIV.

Furthermore, the second cause of action is, on its...