The opinion of the court was delivered by: NOONAN
The plaintiff herein pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, Title 28 U.S.C., seeks to secure an order of this court dismissing count II of the defendants' counterclaim on the ground that that count fails to state a claim upon which relief can be granted; and, pursuant to Rule 12(e), it seeks to procure an order requiring the defendants to make a more definite statement of count I of the counterclaim by setting forth the names of the customers to whom sales were allegedly made by plaintiff at below the established price and the approximate date of each such sale.
The form of the counterclaim is not so vague or ambiguous that the plaintiff cannot reasonably be required to frame its reply.
If it has alternative defenses depending upon the sales involved, it can answer alternatively and resolve the matter subsequently by recourse to the liberal discovery procedure available in this court. The defendants should not be required to limit the proof of their case at this stage in the proceeding.
In its motion to dismiss count II of the counterclaim, the plaintiff asserts that this count, being based on 15 U.S.C.A. § 15 (Section 4 of the Clayton Act) to recover treble damages for alleged violation of 15 U.S.C.A. § 13a (Section 3 of the Robinson-Patman Act), is, in effect, an attempt to recover a civil Penalty based on a purely penal statute which provides for no such civil recovery, and is, therefore, invalid.
The wording of Section 15 applies its provisions to anything 'forbidden in the antitrust laws'. The definition of the term 'anti-trust laws' in 15 U.S.C.A. § 12 includes sections 1-27 of Title 15.
While acts prohibited by 15 U.S.C.A. § 13a thus would appear to be covered by section 15 pursuant to the definition in section 12, the plaintiff contends that Congress never intended that Section 3 of the Robinson-Patman Act, 15 U.S.C.A. § 13a should be included as one of the 'anti-trust laws' for which a private civil action might be maintained.
The plaintiff asserts that Section 3 of the Robinson-Patman Act is exclusively a penal statute, is new rather than amendatory in character, and is completely independent of any other law on the subject (particularly the Clayton Act).
In support of this view the plaintiff cites various extra-judicial authorities and the obiter in one District of Columbia case, National Used Car Market Report, Inc. v. National Auto. Dealers Association, D.C., 108 F.Supp. 692, affirmed 91 U.S.App.D.C. 313, 200 F.2d 359.
While these contentions possess considerable merit and no decision directly on this point yet has been made in this district, the weight of logic and authority throughout the country appears to be against such construction.
In the National Used Car case, supra, the court decision most strongly relied upon by the plaintiff, Judge Bastian expressed his inclination to support the view held by the plaintiff herein, but did not base his decision on that inclination. In fact, he stated in part as follows, 108 F.Supp. at page 694:
'There is doubt as to whether or not an action for damages or an injunction can be maintained under this statute. The view taken by many legal publications and law review articles is to the effect that no action for damages or for an injunction can be maintained thereunder.' (Citing cases.)
The partial affirmance of this decision by the United States Court of Appeals, District of Columbia Circuit, did not touch upon the point in question.
In Atlanta Brick Co. v. O'Neal, D.C.E.D.Tex., Texarkana Div., 44 F.Supp. 39, at page 43, Judge Dawkins, in discussing Section 3 of the Robinson-Patman Act, stated in part:
'It does not provide in express terms that persons injured by things forbidden shall have a cause of action but by declaring them unlawful, the person so injured, I think, is entitled to invoke its provisions, if he can allege ...