NW Controls, Inc. v. Outboard Marine Corporation, Civ. A. No. 3730.

• Decision Date: 18 October 1972
• Docket Number: Civ. A. No. 3730.
• Citation: 349 F. Supp. 1254
• Parties: N. W. CONTROLS, INC., a Pennsylvania corporation, Plaintiff, v. OUTBOARD MARINE CORPORATION, a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Delaware

349 F. Supp. 1254

N. W. CONTROLS, INC., a Pennsylvania corporation, Plaintiff, v. OUTBOARD MARINE CORPORATION, a Delaware corporation, Defendant.

Civ. A. No. 3730.

United States District Court, D. Delaware.

October 18, 1972.

Arthur G. Connolly, Jr., of Connolly, Bove & Lodge, Wilmington, Del., and John T. Synnestvedt and J. Donald McCarthy, of Synnestvedt & Lechner, Philadelphia, Pa., of counsel, for plaintiff.

James M. Tunnell, Jr. and William O. LaMotte, III, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., and Max H. Fruhauf, of Butzel, Levin, Winston & Quint, Detroit, Mich., of counsel, for defendant.

OPINION AND ORDER

LATCHUM, District Judge.

This case is presently before the Court on the motion of the defendant, Outboard Marine Corporation ("O.M.C.") to strike interrogatories propounded to it by the plaintiff, N. W. Controls, Inc. ("N.W."). In this action, originally brought pursuant to the antitrust provisions of the Sherman Act, 15 U.S.C. § 1 et seq., and the Clayton Act, 15 U.S.C. § 12 et seq., the Court held that O.M.C. had committed an antitrust violation under Section 3 of the Clayton Act, 15 U. S.C. § 14, by tying its sales of remote control throttle cables with sales of its electric shift outboard and stern drive engines.¹ Final judgment was entered on November 9, 1971 in which the Court awarded damages for past injuries to N.W.² enjoined O.M.C. in the future from tying in any manner the sales of remote control cables to sales of O.M.C.'s outboard or stern drive engines and directed O.M.C. to treat the sales of such remote control cables and marine engines as sales of separate and independent products. Also during the course of the proceeding the parties stipulated to a secrecy order governing pre-trial discovery of confidential information.³

N.W. now asserts that O.M.C. has violated the injunction by misrepresentations made in correspondence with its dealers, causing a market place detriment to N.W., and has violated the secrecy order by making improper disclosures of confidential information on two occasions.

1. The Injunction.

As previously noted, the Court enjoined O.M.C. from tying in any manner the sale of remote control cables to sales of outboard or stern drive engines, and directed it to treat in all respects the sales of the cables and the marine engines as sales of separate and independent products. N.W. alleges that, despite the injunction, O.M.C. has made statements in written correspondence with one of its dealers which imply that the remote control cable had been a free accessory with the purchase of an engine which must now be paid for and that the present cost increase was a result of N. W.'s successful suit. N.W. has served interrogatories on O.M.C. to determine whether similar misrepresentations have been made to other dealers allegedly in violation of the injunction. O.M.C. has moved to strike the interrogatories on the ground that no action is now pending since a final judgment was entered almost a year ago. N.W. claims that the Court has continuing jurisdiction to discipline parties who violate its orders.

Unquestionably under its ancillary jurisdiction a court has power to enforce obedience to its orders. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1965); and in order to determine whether its order is being obeyed, a court has the right to inquire whether there has been any disobedience thereof. In re Debs, 158 U.S. 564, 595, 15 S.Ct. 900, 39 L.Ed. 1092 (1895); In re Williams, 306 F. Supp. 617 (D.D.C.1969). However, before a court initiates a contempt proceeding or permits extensive discovery of suspected violations of its judgment, there should be at least a prima facie showing by the aggrieved party of disobedience of the order. MacNeil v. United States, 236 F.2d 149, 152 (C.A. 1, 1956), cert. den. 352 U.S. 912, 77 S.Ct. 150, 1 L.Ed.2d 119 (1956); National Labor Relations Board v. Arcade-Sunshine Co., Inc., 74 App.D.C. 361, 122 F. 2d 964, 965 (1941). Thus before the Court will permit the discovery sought here, N.W. must at least present a prima facie case raising a likelihood that the outstanding injunction is being violated.

N.W. has presented a letter⁴ sent by O.M.C. to one of its dealers in December of 1971 which allegedly misrepresents material facts to the dealer in violation of the Court's injunction. The letter stated that "a free throttle cable would no longer be supplied with these engines. Now that you must purchase your cable . . .". N.W. claims that this language shows a violation of the injunction in two respects: first, the statement is deceptive in that the cable was never "free"; and second, the dealers will refuse to deal with N.W. since it was responsible for the loss of the "free" cable.⁵

The Court finds that on neither ground was its judgment violated. With regard to N.W.'s first ground, the letter informs the dealer that henceforth the engine and cable may be purchased separately. This is exactly what the injunction directed O.M.C. to do. That the letter could create the impression that the cable had previously been free does not constitute disobedience of the injunction which only proscribed tying future sales of remote control cables to sales of marine engines.

The substance of N.W.'s second argument is as follows: A dealer who was misled by the letter into believing that it was no longer receiving a "free" remote control cable would blame N.W. for the "loss" and out of resentment would refuse to have any dealings with N.W. However, it is to be noted that the letter makes no reference to N. W. Thus, it would appear that any dealer resentment would more likely be directed only to O.M.C. for terminating the so-called "free" cable. Moreover, even if the dealers were sufficiently acquainted with the litigation to connect N.W. with the "loss" and refuse to deal with it, the resultant injury to N.W. could not be said to have been caused by a violation of the injunction, because, as previously noted, the order only...