Kroch v. Texas Company
| Decision Date | 22 November 1958 |
| Citation | 167 F. Supp. 947 |
| Parties | Charles Carl KROCH, d/b/a Nursery Park Service Center, Plaintiff, v. The TEXAS COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Abraham Pollock, New York City, for plaintiff.
Milton Handler, Amzy B. Steed, Frank D. Gorman, New York City, for defendant.
This is an action for treble damages alleged to have resulted from price discrimination in violation of the Robinson-Patman Act, 15 U.S.C.A. § 13. The complaint alleges that the defendant discriminated in price in favor of gas stations in Nassau and adjoining counties similar to that operated by the plaintiff in Manhasset.
Defendant moves (1) to dismiss the complaint, pursuant to Rule 12(b), Fed. Rules Civ.Proc., 28 U.S.C. on the ground that it fails to state a claim upon which relief can be granted; (2) in the alternative to strike certain allegations of the complaint, pursuant to Rule 12(f), as redundant, conclusions of law, vague, scandalous and impertinent; and (3) for a more definite statement under Rule 12(e) with respect to certain allegations of the complaint. In the event of the denial of its motion to dismiss defendant asks this court to make the certification necessary for an interlocutory appeal to the Court of Appeals under new 28 U.S.C. § 1292(b).
A complaint brought by another plaintiff gas station operator against this defendant, reading in haec verba except for the difference in parties, was before Judge Dimock in Rosen v. Texas Co., D.C.S.D.N.Y., 161 F.Supp. 55. This defendant there made similar motions addressed to the complaint, asking in substance for the same relief which it requests here (with the exceptions hereafter noted). Judge Dimock denied all of the motions corresponding to those which the defendant makes here in a well-considered opinion with which I entirely agree. I therefore deny the defendant's present motions and sustain the complaint upon Judge Dimock's opinion.
Two further matters, however, remain to be considered which were not before Judge Dimock.
The first is the application of the defendant to strike that part of paragraph I of the complaint which alleges that jurisdiction is predicated on Section 13a of Title 15 United States Code Annotated, as well as Section 13 of that title. To accomplish this the defendant seeks the words "and 13A thereof" stricken from paragraph I. In the recent cases of Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 78 S.Ct. 352, 2 L.Ed.2d 340, and Safeway Stores, Inc., v. Vance, 355 U.S. 389, 78 S.Ct. 358, 2 L.Ed.2d 350, the Supreme Court has held squarely that 15 U.S.C.A. § 13a, which is Section 3 of the Robinson-Patman Act, does not create a private cause of action. The plaintiff therefore cannot found the jurisdiction of the court upon that section and the language to which defendant objects will be stricken from the complaint.
The second concerns defendant's request that, if its motion to dismiss the complaint is denied, the district court should make the certification necessary to permit an interlocutory appeal from the order of denial pursuant to the new statute authorizing interlocutory appeals in special cases, 28 U.S.C. § 1292(b).
This section provides that where a district judge, in making an order not otherwise appealable, is...
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...judge and the court of appeals are to exercise independent judgment in each case and are not to act routinely." In Kroch v. Texas Company, D.C., 167 F.Supp. 947, 949, the court "While there is as yet little authority on the extent to which this new statute (§ 1292b) should be used, it is pl......
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...the ultimate substantive requirements for proof necessary to establish the claim which the plaintiff asserts." Kroch v. Texas Company, 167 F.Supp. 947, 949 (S.D.N.Y.1958). Further, plaintiff argues that the determinations reached by this Court in its Order denying defendants' motion to dism......
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...8 Cir. 1960, 285 F.2d 596, 600; Milbert v. Bison Laboratories, 3 Cir. en banc, 1958, 260 F.2d 431, 433-434; Kroch v. Texas Company, S.D. N.Y.1958, 167 F.Supp. 947, 949; Haraburda v. U. S. Steel Corp., W.D.Mich. 1960, 187 F.Supp. 86; Seven-Up Company v. O-So Grape Co., S.D.Ill.1959, 179 F.Su......
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