RITA Chemical Corp. v. Malmstrom Chemical Corp.

• Decision Date: 03 January 1962
• Docket Number: No. 60 C 1845.,60 C 1845.
• Citation: RITA Chemical Corp. v. Malmstrom Chemical Corp., 200 F. Supp. 954 (N.D. Ill. 1962)
• Court: U.S. District Court — Northern District of Illinois
• Parties: R.I.T.A. CHEMICAL CORPORATION, an Illinois corporation, Plaintiff, v. MALMSTROM CHEMICAL CORPORATION, a New Jersey corporation, Ivar Wm. Malmstrom and Richard A. Malmstrom, copartners, doing business under the name and style of N. I. Malmstrom & Company, Defendants.

200 F. Supp. 954

R.I.T.A. CHEMICAL CORPORATION, an Illinois corporation, Plaintiff, v. MALMSTROM CHEMICAL CORPORATION, a New Jersey corporation, Ivar Wm. Malmstrom and Richard A. Malmstrom, copartners, doing business under the name and style of N. I. Malmstrom & Company, Defendants.

No. 60 C 1845.

United States District Court N. D. Illinois, E. D.

January 3, 1962.

John O'C. Fitzgerald, Chicago, Ill., for plaintiff.

Joseph D. Block, Chicago, Ill., for defendant.

WILL, District Judge.

This is an action by an Illinois corporation having its principal place of business in Chicago, against a New Jersey corporation having its principal place of business in New Jersey, its two principal officers and stockholders, one of whom is a resident of the State of New York and the other of the State of New Jersey and who together are the partners of the defendant partnership. The Amended Complaint herein charges the defendants with conspiring to injure the plaintiff and its business through various overt acts. Damages in the aggregate of $251,481.40 are sought.

Defendant MALMSTROM CHEMICAL CORPORATION and the individual defendants, who are copartners doing business under the name and style of N. I. MALMSTROM & COMPANY, have moved to dismiss the action on the grounds that the amended complaint fails to state a claim on which relief can be granted. In the alternative, the individual defendants have moved to quash the return of service of summons as to them on the grounds that (a) the Court lacks jurisdiction over the person of said defendants, and (b) said defendants have not been properly served with process in this action.

With respect to the first ground, defendants assert that the overt acts allegedly committed by the individual defendants as participants in the conspiracy either are not shown to have caused any damage to the plaintiff or are not shown to be unlawful conduct on the part of the defendants. It is well established that a motion to dismiss may be granted only if it is clear that plaintiff would not be entitled to relief under any reasonably conceivable state of facts which might be proven in a trial on the merits. Jung v. K & D Mining Co., 7 Cir., 1958, 260 F.2d 607.

While some of the alleged overt acts of defendants appear not to constitute unlawful conduct on their part and there may be question as to whether any damage to plaintiff was caused by others, it cannot be said that under the pleadings plaintiff could not possibly adduce proof which might warrant relief. Accordingly, the first ground of the motion, i. e., that the amended complaint fails to state a claim upon which relief can be granted, is not so clearly established as...