Nagler v. Admiral Corporation

• Decision Date: 14 June 1956
• Citation: 144 F. Supp. 772
• Parties: Julius NAGLER and Oscar Resnick d/b/a Brooks Radio & Television, Charles De Nave d/b/a Dee Radio & Television Co., Benjamin Katzoff d/b/a Empire Refrigeration & Appliance Co., Harold August d/b/a Jo-Mort, Emanuel Salkind d/b/a Melody Television Company, Harold Kaufman d/b/a N & H Radio, Rajah Appliance Corp., Robert Harrison d/b/a Roda Radio Sales & Service, Stan-White Appliance, Inc., John La Rock and Frank La Rock d/b/a United Radio Lab, Zinn Distributing Corporation, Presto Television, Inc., John Pristas d/b/a Corona Appliance Company, suing on behalf of themselves and all others similarly situated, Plaintiffs, v. ADMIRAL CORPORATION, Admiral Corporation New York Distributing Division, Inc., Emerson Radio and Phonograph Corp., The Wilcox-Gay Corporation, Allen B. Du Mont Labs, Inc., Du Mont New York, Inc., The Maytag Company, Maytag-Atlantic Co., Inc., Warren-Connelly Company, Inc., Zenith Radio Corp., The Peerless Corp., Roto Broil Corp. of America, Jay Kay Retail Specialties Corp., Philco Corporation, Philco Distributors, Inc., Times-Appliance Co., Inc., Nash-Kelvinator Sales Corp., Motorola-New York, Inc., Gross Distributors, Inc., Perfection Stove Co., Servel, Inc., Wel-Built Stove Co., Inc., Vim Television and Appliance Stores, Inc., Davega Stores Corporation, Maytag Washer & Ironer Company, Inc., American Motor Sales Corp. (Kelvinator Div.), Defendants.
• Court: U.S. District Court — Southern District of New York

144 F. Supp. 772

Julius NAGLER and Oscar Resnick d/b/a Brooks Radio & Television, Charles De Nave d/b/a Dee Radio & Television Co., Benjamin Katzoff d/b/a Empire Refrigeration & Appliance Co., Harold August d/b/a Jo-Mort, Emanuel Salkind d/b/a Melody Television Company, Harold Kaufman d/b/a N & H Radio, Rajah Appliance Corp., Robert Harrison d/b/a Roda Radio Sales & Service, Stan-White Appliance, Inc., John La Rock and Frank La Rock d/b/a United Radio Lab, Zinn Distributing Corporation, Presto Television, Inc., John Pristas d/b/a Corona Appliance Company, suing on behalf of themselves and all others similarly situated, Plaintiffs, v. ADMIRAL CORPORATION, Admiral Corporation New York Distributing Division, Inc., Emerson Radio and Phonograph Corp., The Wilcox-Gay Corporation, Allen B. Du Mont Labs, Inc., Du Mont New York, Inc., The Maytag Company, Maytag-Atlantic Co., Inc., Warren-Connelly Company, Inc., Zenith Radio Corp., The Peerless Corp., Roto Broil Corp. of America, Jay Kay Retail Specialties Corp., Philco Corporation, Philco Distributors, Inc., Times-Appliance Co., Inc., Nash-Kelvinator Sales Corp., Motorola-New York, Inc., Gross Distributors, Inc., Perfection Stove Co., Servel, Inc., Wel-Built Stove Co., Inc., Vim Television and Appliance Stores, Inc., Davega Stores Corporation, Maytag Washer & Ironer Company, Inc., American Motor Sales Corp. (Kelvinator Div.), Defendants.

United States District Court S. D. New York.

June 14, 1956.

PALMIERI, District Judge.

This is an action for treble damages and injunctive relief brought pursuant to the Robinson-Patman Act and the Sherman Anti-Trust Law, 15 U.S.C. § 13, §§ 1-7, 15 U.S.C.A. §§ 13, 1-7, 15 note. The plaintiffs are nine retailers engaged in the business of selling radio and television appliances. Two of the twenty-six defendants, Vim Television and Appliance Stores, Inc., and Davega Stores Corporation, are retailers in the same field. The other defendants are manufacturers or distributors of radio and television appliances. The action is brought as a class action under Rule 23 (a), Fed.Rules Civ.Proc. 28 U.S.C.

The complaint purports to set forth three causes of action, the first under the Robinson-Patman Act, the last two under § 1 of the Sherman Act. The defendants have moved to dismiss the complaint, or, in the alternative, to strike certain portions thereof. They also seek to dismiss the case as a class action, and to require that the claims against the respective defendants be separately stated and numbered. Three of the defendants have moved to dismiss pursuant to Rule 37(d) of the Federal Rules of Civil Procedure on the ground that plaintiffs wilfully failed to appear for the taking of depositions. Plaintiffs move to reopen that default.

It is clear at the outset that this complaint is the product of careless draftsmanship and patent disregard for the basic considerations of the Federal Rules of Civil Procedure. Most of its allegations are substantially the same in form and effect as those considered by Judge Dawson in striking an amended complaint in Baim & Blank, Inc., v. Warren-Connelly Co., D.C., 19 F.R.D. 108. Similar complaints, containing substantially similar allegations and involving a number of the same defendants, have been dismissed by this Court with reasoned opinions in Baim & Blank, Inc., v. Admiral Corp., D.C.S.D.N.Y.1955, 132 F. Supp. 412, and Baim & Blank, Inc., v. Vim Television & Appliance Stores, Inc., D.C.S.D.N.Y., 139 F.Supp. 378. Provided with ample guidance for the preparation of these pleadings, plaintiffs have nevertheless proceeded with scant attention to the express views of this Court.

The complaint fails to indicate even the approximate dates when the discriminatory practices alleged in the first cause of action are claimed to have occurred or the conspiracies and contracts, in the second or third, to have been formed. The twenty-six defendants, with the exception of two specified to be suppliers and two identified as manufacturers, are collectively described as manufacturers or suppliers without further identification. Their addresses are omitted and their location defined only with the conclusory allegation that each transacts business in the Southern District of New York.

There is no "short and plain statement of the claim showing that the plaintiffs are entitled to relief". Rule 8(a), F.R. Civ.P. In the first cause of action, for violation of the Robinson-Patman Act, plaintiffs have failed to define the area in which they compete and in which competition was alleged to have been affected by defendants' discriminatory practices. They have failed adequately to describe the injuries allegedly suffered or to define the causal relationship between their damages and the discriminatory practices alleged. See Baim & Blank, Inc., v. Admiral Corp., supra. By stating the claims of all the plaintiffs against all the defendants collectively, they have deprived the defendants of notice of the precise nature of the claims that each will be required to meet. The first cause of action must be dismissed.

Plaintiffs' second cause of action incorporates the allegations of discriminatory practices set forth in the first and enumerates certain additional "competitive advantages" believed to have been granted by the defendants to all or some of the "favored competitors." With the further allegation that these "overt acts" are believed to have been committed "pursuant to contracts, combinations and conspiracies with some or all of the `favored customers' having the effect of restraining trade," it purports to state a cause of action for violation of § 1 of the Sherman Act.

In Baim & Blank, Inc., v. Admiral Corp., supra 132 F.Supp. 413, this Court dismissed a Sherman Act complaint which failed to allege the "formation of a conspiracy" or anything other than conclusory statements to indicate that a combination had been formed. Here, plaintiffs have not only omitted facts showing the formation of a conspiracy; they have failed to identify the conspirators. Defendants can hardly be expected to meet allegations that they have entered into contracts or conspiracies with unidentified customers, for unidentified objects at unspecified times or places. A compilation of the overt acts alleged to have been effected pursuant to such contracts or conspiracies, provides no clarification, since none of them is identified with any particular defendant, customer, contract or arrangement. The second cause of action must be dismissed.

The third cause of action is subject to the same objections as the second. It is alleged here that various of the defendants described as suppliers, but nowhere identified, entered into agreements with two specified retailers to give those retailers the privilege of direct purchase from the manufacturers. To this end, the defendants involved are alleged to have "waived their exclusive rights to sell and distribute" certain branded products. The source of the rights waived is undefined. Presumably, they stemmed from agreement with the manufacturer defendants. The latter are alleged in another paragraph of this cause of action to have maintained a system of exclusive territorial...