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COHEN v. AVCO CORP.

February 11, 1953

COHEN et al.
v.
AVCO CORP. et al.



The opinion of the court was delivered by: CONGER

Motion by defendants Avco Corporation, Bendix Home Appliances, Inc., Telecoin Corporation and Arthur W. Percival to dismiss the amended complaint herein on the ground that it fails to state a claim upon which relief can be granted, or in the alternative that the plaintiffs be required to furnish a more definite statement of their causes of action or in the further alternative that paragraph '2' be stricken from the amended complaint.

It is clearly evidence that paragraph '2' is an allegation which has no part in this pleading.

 Were that all, I would simply grant the motion to strike without requiring a new complaint. However the complaint does need additional allegations, in my opinion, to make it more definite and certain.

 Paragraph '1' should be amended to set forth specifically each section which is relied upon by the plaintiffs. This is the section which gives jurisdiction to the plaintiffs and should specifically set forth the sections relied upon.

 This will also give notice to defendants as to which of the Anti-trust laws plaintiffs are proceeding under, the Sherman, 15 U.S.C.A. § 1 et seq., Clayton, 15 U.S.C.A. 12 et seq., or Robinson-Patman Acts, 15 U.S.C.A. §§ 13, 13a, 13b, 21a.

 As it now reads, plaintiffs allege that they rely on 'Section 1 through 27 of Title 15 of the United States Code.' This cannot be correct, because there are many sections between section 1 and section 27 which concededly can have no relation to this lawsuit. For instance, among others, section 2 refers to 'Monopolizing trade a misdemeanor; penalty'. Section 3 refers to 'Trusts in Territories or District of Columbia illegal; combination a misdemeanor.' Section 11 has to do with 'Forfeiture o? property in transit'. Section 23 has to do with 'Suits by United States; subpoenas for witnesses.'

 Paragraph '2' also contains an allegation which is not proper. That allegation is that this action was brought as a class action '* * * pursuant to permission granted by this Court, Bascom Launder Corp. v. Telecoin Corp., 9 F.R.D. 677.' That is not an accurate statement. That permission was granted in another action- not this one.

 The Federal rules provide that complaint should contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. Rules Civ. Proc. rule 8(a), 28 U.S.C.A.

 I am not prepared to say that this pleading is defective when measured by the liberal yardstick of the Federal rules. I believe, however, an amended pleading is indicated here in the interest of clarity and definiteness. Of course, the pleader is not to go to the other extreme and allege a plethora of facts so that such a pleading causes nothing but confusion. This pleading may and should be drafted in such a way with some essential and necessary additions and still follow the rule of simplified pleading.

 In as much as this amended complaint has to be re-drafted, I have some suggestions to make to plaintiffs' attorney as to these additions.

 At the outset, as I read the amended complaint, I was struck by the fact that there was nothing alleged about interstate commerce or interstate activities, nor that there was any illegal restraint of trade in interstate commerce.

 In paragraph '5' of the amended complaint it is alleged that Bendix and Telecoin 'entered into a contract which was in restraint of trade * * *.'

 Of course, if the acts complained of only affected intrastate trade there would be no cause of action under the Federal anti-trust laws.

 Plaintiffs may argue that one may infer that interstate commerce and restraint is to be presumed because of the reference to the sections of ...


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