LOUISIANA FARMERS PROTEC. UNION v. GREAT A. & P. TEA CO.

• Decision Date: 12 February 1949
• Docket Number: Civ. No. L. R.-126.
• Citation: 83 F. Supp. 646
• Parties: LOUISIANA FARMERS PROTECTIVE UNION, Inc. v. GREAT ATLANTIC & PACIFIC TEA CO. OF AMERICA, Inc., et al.
• Court: U.S. District Court — Eastern District of Arkansas

83 F. Supp. 646

LOUISIANA FARMERS PROTECTIVE UNION, Inc. v. GREAT ATLANTIC & PACIFIC TEA CO. OF AMERICA, Inc., et al.

Civ. No. L. R.-126.

United States District Court E. D. Arkansas, Western Division.

February 12, 1949.

James H. Morrison, of Hammond, La., and Cameron C. McCann, of New Orleans, La., for plaintiff.

E. L. McHaney, Jr., Owens, Ehrman & McHaney, W. R. Roddy, and House, Moses & Holmes, all of Little Rock, Ark., and Pat Coon and Clark, Coon, Holt & Fisher, all of Dallas, for defendants.

JOHN E. MILLER, District Judge.

The original complaint in this cause was filed on April 20, 1939. From that date until October 25, 1948, the proceedings in the trial court were before Honorable Harry J. Lemley, United States District Judge for the Eastern and Western Districts of Arkansas, to whom the case was originally assigned.

On October 25, 1948, Judge Lemley filed a "Certificate of Disqualification," the concluding paragraph of which reads:

"By reason of the actions of the plaintiff acting through its aforesaid counsel, and of its said attorneys, Messrs. McCann and Morrison (Mr. Cameron C. McCann and Hon. James H. Morrison, attorneys of record for plaintiff), and in particular Mr. McCann, as set out and referred to herein, I feel that I cannot in good conscience further sit in this cause. In my mind, the same have rendered it impossible for me to conduct any further proceedings in the case with impartiality and without bias toward the plaintiff. I therefore recuse myself from any further consideration of this litigation." (Matter in parenthesis supplied.)

Thereafter, on January 19, 1949, the Honorable Archibald K. Gardner, Chief Judge, United States Court of Appeals, Eighth Circuit, designated and appointed the writer to sit in the Eastern District of Arkansas for the purpose of disposing of this case. The assignment was filed in the office of the Clerk on January 20, 1940.

Pending at the time of Judge Lemley's withdrawal from the case was a motion or request for default judgment filed by the plaintiff on September 21, 1948. A hearing was held on said motion (September 22, 23, and 24, 1948) and the motion was taken under advisement, awaiting preparation and filing of briefs by respective counsel. That is the question now before the Court.

Because of the voluminous record in this case it has been necessary to study the entire record and files to ascertain what has transpired during the ten years this case has been pending before Judge Lemley, and at the risk of drawing out this opinion, it seems necessary that a chronological outline of the material proceedings be set forth herein.

The history of the case from April 20, 1939, the date of the filing of the first complaint, through December 28, 1942, the date of the filing of the mandate of the Court of Appeals, will be found in two opinions by the District Court, 31 F.Supp. 483 and 40 F.Supp. 897, and one opinion by the Court of Appeals for the Eighth Circuit, 131 F.2d 419.

However, in order that this memorandum may be coherent in and of itself, the following brief summary is inserted.

In substance the complaint, which in form is in three counts, charges a violation of various sections of the national antitrust laws (count 1 — sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1 and 2; count 2 — section 2 of the Clayton Act, 15 U.S.C.A. § 13; count 3 — section 3 of the Robinson-Patman Act, 15 U.S.C.A. § 13a), the same allegations furnishing the basis for the alleged violation in each count.

The trial court on October 1, 1941, dismissed the complaint without leave to amend, upon motion by defendants to dismiss for failure to state a claim upon which relief could be granted, being of the opinion that the complaint as then amended and as amplified by bills of particulars should be dismissed on two grounds: (1) Because plaintiffs had not "* * * alleged facts showing damage to the business or property of its assignors in an amount susceptible of expression in figures, proximately resulting from the alleged illegal acts;" and (2) because "* * * the necessary causal relationship between the alleged violations of the statutes and the alleged damage to plaintiff's assignors, does not appear."

The Court of Appeals in reversing, 131 F.2d 419, 421, said:

"Taking the complaint in its entirety, the gravamen of appellant's charge is that appellees, buyers of Louisiana strawberries, agreed with each other to control the price of berries by driving out of the market competing purchasers. This alleged conspiracy was made effective by selling to the consumer at retail prices either below cost or at prices so low as to eliminate competitors of appellees in the retail market, thus compelling other distributors of berries at wholesale who were buyers of Louisiana strawberries in interstate commerce for sale to competing retailers, to retire from the Louisiana market or to purchase only at the depreciated price fixed by the appellees; and by these actions the members of the appellant union sustained the damages claimed."

The Court also said that since the plaintiff was suing as assignee of 8,795 separate claims it was necessary that plaintiff allege the damage, computed upon actual and not average prices, to the business or property of each assignor proximately resulting from the alleged unlawful acts of defendants, yet, this defect in the complaint went only to the amount of damage, and the trial court should have granted plaintiff a reasonable time within which to amend rather than dismiss without leave to amend. As to the second ground of dismissal the Court of Appeals observed that the conclusions drawn by the trial court in connection with that ground were of a character usually to be drawn from the evidence after a hearing and not from the pleadings, and as such, are within the exclusive province of the jury to be drawn after evidence is adduced.

The mandate of the Court of Appeals, filed December 28, 1942, read as follows:

"And it is further ordered by this Court that this cause, be, and the same is hereby, remanded to the said District Court with directions to grant the appellant a reasonable time in which to amend the complaint by setting out the amount of damage claimed to have been received by each of the appellant's assignors and the basis upon which the amount was computed, and for further proceedings in conformity with the opinion of this Court filed herein."

On December 18, 1942, the attorneys for defendants filed notice that they would apply on January 12, 1943, to the District Judge for an order on the mandate granting plaintiffs a definite, reasonable time within which to comply with said mandate.

Plaintiff filed motion on January 11, 1943, requesting the Court to fix a date not earlier than May 12, 1943, as a time limit for amending the complaint, giving as grounds therefor that plaintiff's attorney, Hon. James H. Morrison, was compelled to go to Washington to serve in Congress; that plaintiff's attorney, Joseph Sims, had assumed duties of District Attorney at Hammond, Louisiana; that the above named attorneys were the only attorneys for plaintiff familiar with the almost 9,000 assignors; and pointing out that a huge volume of work was necessary in order to comply with the mandate. A hearing was held on January 12, 1943, at which time local counsel for plaintiff filed a motion praying that the hearing be continued until February 8, 1943, and that plaintiff be allowed to amend its motion of January 11, 1943, so as to fix a date certain as the definite date determining a reasonable time within which to amend. On that date, January 12, 1943, an order was filed granting the continuance and granting 15 days within which to amend said motion of January 11, 1943.

On February 1, 1943, plaintiff filed an amended motion requesting until June 12, 1943, within which to amend its complaint pursuant to the mandate. Said motion was granted on February 8, 1943, and an order to that effect was entered on February 9, 1943.

Plaintiff filed an additional motion on June 7, 1943, requesting that the time within which to comply with the mandate be extended until December 31, 1943. The reasons set forth in the original motion of January 11, 1943, were reasserted. An order granting the motion was entered on June 14, 1943.

A motion to enlarge the time to file amended complaint was filed by the plaintiff on January 3, 1944, with attached affidavits of Mr. Morrison and Earl E. Spencer, acting secretary of plaintiff, requesting an extension until April 1, 1944. To this motion the defendants filed a response on January 10, 1944, alleging that the motion was filed after the expiration of the time allowed by the previous order and that the motion and attached affidavits failed to show "excusable neglect" for failure to file within that time. An amendment to the response was filed on January 15, 1944, requesting a hearing on the matter. An order was entered January 28, 1944, allowing the motion for a continuance to be filed, and setting a hearing on said motion for March 6, 1944. Order was entered March 6, 1944, reciting that hearing on motion for enlargement of time be adjourned until May 1, 1944, because of the illness of plaintiff's witness, Earl E. Spencer, and directing that the deposition of said Earl E. Spencer be taken at Hammond, Louisiana. The deposition was taken April 17, 1944, and filed May 8, 1944. While the motion was still pending, and on June 12, 1944, plaintiff filed its first amended complaint pursuant to mandate, together with statements setting forth the alleged losses suffered by 5001 assignors during the year 1937 and 3176 assignors during the year 1938. A hearing on the motion for an enlargement of time was held on June 12, 1944, at which time the Court found that the first amendment to the complaint was not "properly filed," but that it, together with the deposition of Earl E. Spencer, was sufficient evidence of the good faith of plaintiff, and...