Industrial Building Materials, Inc. v. Interchemical Corp.

• Decision Date: 26 December 1967
• Docket Number: No. 64-432.,64-432.
• Citation: 278 F. Supp. 938
• Court: U.S. District Court — Central District of California
• Parties: INDUSTRIAL BUILDING MATERIALS, INC., a corporation, Plaintiff, v. INTERCHEMICAL CORPORATION, a corporation, and Martin-Marietta Corporation, a corporation, Defendants.

278 F. Supp. 938

INDUSTRIAL BUILDING MATERIALS, INC., a corporation, Plaintiff, v. INTERCHEMICAL CORPORATION, a corporation, and Martin-Marietta Corporation, a corporation, Defendants.

No. 64-432.

United States District Court C. D. California.

December 26, 1967.

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George W. Jansen, Paul B. Wells, and Procopio, Cory, Hargreaves & Savitch, San Diego, Cal., for plaintiff.

G. Richard Doty, Kenneth E. Owen and McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for defendant Interchemical Corporation.

Gordon F. Hampton, Stephen C. Taylor, Don T. Hibner, Jr., and Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for defendant Martin-Marietta Corporation.

DECISION ELIMINATING ISSUES, GRANTING DISMISSAL AND ORDERING SUMMARY JUDGMENT.

HAUK, District Judge.

This is an action to recover treble damages for injuries allegedly sustained by reason of violations of the antitrust laws by defendants. Jurisdiction is vested in this Court by Section 4 of the Clayton Act, Act of October 15, 1914, Ch. 323, § 4, 38 Stat. 731, 15 U.S.C. § 15.¹

The Complaint was filed on March 18, 1964 in the Northern Division of the Southern District of California, and summons was issued thereon. That filing was in error, and on motion of plaintiff's counsel, the case was transferred to this Division of the Court on April 1, 1964.

The Complaint alleged in general terms that defendants Martin-Marietta Corporation and Interchemical Corporation had contracted, combined and conspired among themselves and with others unreasonably to restrain interstate trade and commerce in sealants, sealing compounds and other allied products in the United States and particularly in California, Arizona and Nevada, had in fact unreasonably restrained such trade and commerce, had attempted to monopolize such trade and commerce, had conspired to monopolize and had succeeded in monopolizing such trade and commerce, all in alleged violation of Sections 1 and 2 of the Sherman Act, Act of July 2, 1890, Ch. 647, §§ 1 and 2, 26 Stat. 209 as amended, 15 U.S.C. §§ 1² and 2.³ Objects and purposes of the alleged conspiracy were described in general terms, and acts in furtherance of the alleged attempt to monopolize, conspiracy to monopolize and monopolization were similarly generally described. Plaintiff was alleged to have been a distributor of the products of the Presstite Division, a manufacturer of sealants, sealing compounds and allied products, which had been owned by defendant Martin-Marietta Corporation until July 1, 1963 and was owned by defendant Interchemical Corporation thereafter. Plaintiff was alleged to have been injured by reason of such alleged violations of the antitrust laws in that its business of distributing Presstite products was destroyed. Damages aggregating $530,000 (trebled: $1,590,000) were claimed.

By a second count, the Complaint alleged that defendants had violated section 2 of the Clayton Act, as amended by the Robinson-Patman Act, Act of October 15, 1914, Ch. 323, § 2, 38 Stat. 730; amended June 19, 1936, Ch. 592, § 1, 49 Stat. 1526, 15 U.S.C. § 13(a),⁴ by discriminating in price between different purchasers of commodities (sealants, sealing compounds and allied products) of like grade and quality, etc. (generally following the language of the statute). Such conduct of defendants was alleged to have caused injury to plaintiff's business, apparently the same injury as that mentioned in the first count, and damages of $530,000 (trebled: $1,590,000) were claimed.

In accordance with the current trend in complaints in cases of this kind, the complaint described the allegedly unlawful conduct of defendants only in terms of "ultimate facts". No specific acts, occurrences or events were described or identified; no persons other than defendants and plaintiff were identified; no particular sales were singled out as being unlawful. In short, although it was satisfactory as an opening pleading, the Complaint gave no clue at all as to the particular acts and conduct of defendants which the "ultimate facts" alleged in the Complaint were intended to describe.

Defendant Interchemical promptly served and filed interrogatories to plaintiff inquiring in detail about the acts, occurrences, events, persons, agreements, etc. to which the various averments of the Complaint were directed. Plaintiff made no real attempt to answer any of the interrogatories directed to the alleged unlawful conduct, responding instead to each of such interrogatories with a formula "answer" which stated that, in the absence of discovery, plaintiff was not prepared to formulate a trial plan and formulate its evidence, and referred defendants back to the complaint. Of course, plaintiff's response was simply a refusal to answer the interrogatories, in complete disregard of the Rules, and Judge Byrne, to whom the case was then assigned, treated it as such. He was sharply critical of plaintiff's conduct (e. g. Transcript, June 15, 1964 p. 7), described the purported answers as "insolent" and "inherently improbable" (Id. at 12) and ordered plaintiff to answer those interrogatories "fully and fairly, with no further evasion" (Id. at 16, Order of June 18, 1964).

Plaintiff's further answers to interrogatories continued in the non-responsive, evasive pattern of the original answers although the formula approach was abandoned, in complete disregard for both the Rules and the Court's Order. Judge Byrne, however, viewed these further answers charitably, regarding them as an admission that plaintiff then had no information responsive to the interrogatories. Taking the practical approach that proper answers directly responsive to the interrogatories, which expressly admitted that plaintiff had no information, would not advance the case, he denied Interchemical's motion for further answers.

By an amended Complaint, dated July 16, 1964, plaintiff essentially restated its original Complaint, increasing its claimed damages to $830,000 (trebled: $2,490,000). On motion of Martin-Marietta, two portions of the Amended Complaint were stricken as irrelevant. Defendants answered, admitting certain facts about the respective businesses of the parties, the ownership of the Presstite Division, and the relationships between the parties, and denying the allegations respecting violations of the law and injury to plaintiff.

Fairly extensive discovery by all parties followed, without further intervention by the Court, the parties successfully resolving their differences by stipulation.

On April 5, 1966, apparently pursuant to discussions between the parties respecting procedures for defining issues for trial, plaintiff served (and filed on April 6) a "Statement of Contentions". Although that document was fairly explicit regarding the course of dealings between plaintiff and defendants, it continued to charge defendants with unlawful conduct in the most sweeping terms, without disclosing the particular acts, occurrences, events, parties, etc. upon which such charges were based.

Interchemical then propounded a second set of interrogatories to plaintiff, filed April 27, 1966, which inquired in detail about the facts supporting the various claims of misconduct by defendants made in the Amended Complaint and the Statement of Contentions. Plaintiff's time to answer those interrogatories was extended by a series of stipulations, successively, to May 31, 1966, June 15, 1966, July 1, 1966, and August 5, 1966. On August 15, 1966, the parties appeared before this Court for preliminary pretrial conference, the case having been transferred from Judge Byrne via Judge Whelan to Judge Hauk. Plaintiff was then 10 days in default with respect to its answers to interrogatories, following expiration of the last preceding extension. At that conference, the Court, after consulting with counsel for all parties, fixed a schedule for further proceedings which, among other things, ordered plaintiff to answer Interchemical's interrogatories by September 15, 1966 and at the same time to serve and file a statement of contentions and description of documentary materials and oral testimony to be offered at the trial (Order of August 26, 1966).

On October 6, 1966, when plaintiff was about three weeks in default under the foregoing order, at the request of counsel for plaintiff, and with defendants' consent the Court continued all of the dates in the aforesaid order approximately four weeks, extending plaintiff's time to answer interrogatories, etc. to October 10, 1966. On October 20, when plaintiff was 10 days in default, and pursuant to stipulation dated October 11, when plaintiff was in default, the Court continued all of the dates in said order by approximately five more weeks, extending plaintiff's time as aforesaid to November 14, 1966.

On November 15, 1966, one day late, plaintiff mailed to defendants a first installment of its response to Interchemical's interrogatories, and on November 22, 1966, eight days late, it mailed the remainder. Apparently plaintiff regarded the response to Interchemical's interrogatories as being equivalent to the statement of contents and description of documentary evidence and oral testimony proposed to be offered at the trial which the Court had ordered plaintiff to serve and file by its Orders of August 26, October 6 and October 20, 1966, for it filed nothing further.

Plaintiff's paper was entitled "Plaintiff's Answers to Interrogatories of Defendant Interchemical Corporation", and this was fortunate, for otherwise it could not have been identified as such. It was not responsive to a single one of the interrogatories, and it did not purport to be responsive or to comply with the Rules applicable to answers to interrogatories. In lieu of answering the interrogatories separately as required by Fed.R.Civ.P. 33, plaintiff submitted a two volume Narrative and four appendices, in ten volumes, which it claimed ...