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WEINBERG v. SINCLAIR REF. CO.

June 9, 1942

WEINBERG et al.
v.
SINCLAIR REFINING CO.



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

These are motions made on behalf of the defendant:

1. For an order directing judgment dismissing the complaint herein on the grounds (a) that the complaint fails to state a claim against the defendant upon which relief can be granted, and (b) that the complaint fails to state facts sufficient to establish that this Court has jurisdiction of the subject matter of this action.

 2. In the alternative, in the event that the foregoing motion numbered "1" should be denied, for an order striking out as immaterial, irrelevant, redundant and impertinent or as mere conclusions unsupported by allegations of facts, and as prejudicial to the defendant certain enumerated portions of the complaint.

 3. In the alternative, in the event that motion numbered "1" above should be denied, for an order directing the plaintiffs, within ten (10) days after the service on their attorney of an order entered upon this motion, to serve a more definite statement, or a bill of particulars of the plaintiffs' causes of action in certain enumerated matters, upon the ground that such matters are not averred with sufficient definiteness or particularity to enable the defendant to prepare properly its responsive pleading, or to prepare for trial.

 4. In the alternative, in the event that motion numbered "1" and motion numbered "2" should be denied, in whole or in part, for an order directing the plaintiffs within ten (10) days after the service on their attorney of an order entered upon this motion, to serve a more definite statement, or a bill of particulars in certain enumerated matters, upon the ground that such matters are not averred with sufficient definiteness, or particularity to enable the defendant to prepare properly the responsive pleading, or to prepare for trial.

 5. In the alternative, in the event that motion numbered "1" should be denied, for an order allowing the defendant twenty (20) days after the service of a more definite statement, or a bill of particulars within which to serve and file its answer to the complaint, or make such further motions directed to the complaint as the defendant may be advised; etc.

 This is an action brought by three plaintiffs in which each of them, in separate causes of action, seek to recover treble damages under the provisions of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C.A., Section 15, based upon the alleged discrimination in prices charged by defendant for gasoline, of like grade and quality sold to plaintiffs, and other purchasers similarly situated.

 I will consider the motions in their order.

 Motion 1, to dismiss the complaint.

 In the complaint in this action the plaintiffs have alleged their respective claims in three separate causes of action, the allegations in all of them being substantially the same except as to names, addresses, places of delivery and time.

 The complaint as to the several plaintiffs alleges diversity of citizenship, the individual plaintiffs being alleged to be citizens and residents of the Borough of Brooklyn in this district, and the corporate plaintiff being alleged to be a New York corporation, doing business in the Borough of Brooklyn in this district, and the defendant being alleged to be a Maine corporation having a place of business in the Borough of Brooklyn in this district.

 The complaint further alleges the sale by the defendant while engaged in commerce and in the course of said commerce to the plaintiffs of certain quantities of gasoline for sale within the United States, and also the sale by the defendant to purchasers, other than plaintiffs, while engaged in commerce, and in the course of such commerce, and during the time it was selling to plaintiffs, gasoline of like grade and quantity as that sold to plaintiffs for resale within the United States, and in and while so doing discriminated in the price, and required the plaintiffs to pay the defendant one cent more per gallon for the said gasoline than said other purchasers were required to pay.

 The complaint also alleges that the defendant by illegal subterfuge and device gave rebates, discounts, terms, allowances and other preferences to the said other purchasers over the plaintiffs thereby discriminating against the plaintiffs in the price charged them by defendant for gasoline of ...


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