Sunkist Drinks v. California Fruit Growers Exchange
| Decision Date | 12 September 1938 |
| Citation | 25 F. Supp. 400 |
| Parties | SUNKIST DRINKS, Inc., v. CALIFORNIA FRUIT GROWERS EXCHANGE. |
| Court | U.S. District Court — Southern District of New York |
Ludwig M. Wilson, of New York City, for plaintiff.
Rogers, Ramsay & Hoge, of New York City (Edward S. Rogers, Clifton Cooper and Leslie D. Taggart, all of New York City, of counsel), for defendant.
The motion is to dismiss a complaint for malicious prosecution on the ground that no cause of action is shown. The complaint alleges that the defendant in 1931 commenced suit against the plaintiff to enjoin the latter's use of the word "Sunkist", in which suit the defendant was largely unsuccessful; that from the decree the defendant took an appeal, which was later dismissed; that the defendant in 1937 commenced another suit against the plaintiff for the same relief, in which suit the bill was dismissed on motion; that the defendant then brought a third suit by a so-called supplemental bill, which likewise was dismissed on the plaintiff's motion. All three suits were brought in this court. The plaintiff proceeds to allege that each suit was brought maliciously and without probable cause, putting the plaintiff to great expense and harming it in business, to its injury in the sum of $50,000.
The court will take judicial notice of its own records in connected cases between the same parties. In re Jugiro, 140 U.S. 291, 11 S.Ct. 770, 35 L.Ed. 510; Butler v. Eaton, 141 U.S. 240, 11 S.Ct. 985, 35 L.Ed. 713; Matter of Ordway, 196 N.Y. 95, 89 N.E. 474. From those records the court is aware that in the first suit brought by the defendant and here complained of the present defendant won a final injunction, though not in as broad terms as it asked for, and that the injunction still stands. The present plaintiff has no fair grievance over the institution of that suit. In an action for malicious prosecution it is indispensable for the plaintiff to show that he finally prevailed in the proceedings of which he complains. Burt v. Smith, 181 N.Y. 1, 5, 73 N.E. 495, 2 Ann.Cas. 576.
On the balance of the complaint, there is the charge that the defendant brought two later suits which were dismissed on motion, and it is said that they were brought maliciously and without probable cause. Both suits were dismissed, as the court knows from its records, not on the merits but on the ground that the present defendant had mistaken its remedy. The suits were mere civil suits, unaccompanied by arrest, attachment or injunction. The law in New York, where...
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...recover for like causes of action.” See, also, National Surety Company v. Page, 4 Cir., 58 F.2d 145 and Sunkist Drinks, Inc. v. California Fruit Growers Exchange, D.C., 25 F.Supp. 400. Appellant and appellee both cite and discuss Leyser v. Field, 5 N.M. 356, 23 P. 173, 174, as being the onl......
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