Before: CLARK, Chief Judge, and CHASE and HINCKS, Circuit Judges.
Julius Nagler and Oscar Resnick, doing business as Brooks Radio & Television, and twelve other retailers of radio, television, and electrical appliances in the Greater New York area, appeal from the dismissal, D.C.S.D.N.Y., 144 F.Supp. 772, for improper pleading and joinder, of their action for damages and injunction for restraint of trade and price discrimination brought against twenty-four supplier defendants, distributors and wholesalers of such appliances, and two retail appliance dealers operating chain stores in the same area. Reversed and remanded.
CLARK, Chief Judge: This is an antitrust and price-descrimination action for injunction and damages by thirteen retailers in the Greater New York area of radio, television, and electrical appliances. It is brought against twenty-six defendants, of whom twenty-four are "suppliers," i.e., manufacturers, wholesalers, and distributors, and two are retailers operating chain stores in this area. The case is founded upon the allegation that these two defendant-retailers, Davega Stores Corporation and Vim Television and Appliance Stores, Inc., received special price concessions from the supplier defendants. The complaint is in twenty-nine paragraphs and three counts, or "causes of action" as they are labeled. The first cause is for "Defendants' Discrimination Against Plaintiffs in Violation of the Robinson-Patman Act," 15 U.S.C. § 13; while the other causes, reincorporating the allegations of the first, are for violations of the Sherman Act, 15 U.S.C. §§ 1, 2. Ten of the defendants joined in a motion to dismiss for improper pleading under F.R.C.P., rule 8(a) and (e), and for misjoinder of parties; alternatively they asked for relief under F.R. 10(b), 12(e) and (f), i.e., for separate statements as to each defendant, for a more definite statement, and for striking parts of the complaint. Other defendants have moved for more definite statements; but such motions are not before us, nor have these defendants appeared as appellees. The court, in a substantial opinion, D.C.S.D.N.Y., 144 F.Supp. 772, granted dismissal on the grounds urged and dismissed the complaint as to all the defendants. This appeal followed.
The drastic remedy here granted for pleading errors is unusual, since outright dismissal for reasons not going to the merits is viewed with disfavor in the federal courts. See for recent expressions of the fundamental policy: Atwood v. Humble Oil & Refining Co., 5 Cir., 243 F.2d 885; Rennie & Laughlin, Inc. v. Chrysler Corp., 9 Cir., 242 F.2d 208, 213; Cooper v. R. J. Reynolds Tobacco Co., 1 Cir., 234 F.2d 170, and other cases cited below. And this has been true generally in both English and American law and legal history, for cases are not finally disposed of on mere points of pleading alone.*fn1 Courts naturally shrink from the injustice of denying legal rights to a litigant for the mistakes in technical form of his attorney. Moreover there are, or would be, serious questions of res judicata; and since this doctrine is two-edged, its application may well present problems for defendants as well as plaintiffs. Quite possibly those defendants who have not sought the relief they have given (and who are not here to support the grant) may have been motivated by doubts as to what they have won. For are the plaintiffs merely relegated to initiating a new action or are they permanently barred? Compare Griffin v. Griffin, 183 Va. 443, 32 S.E.2d 700, with Gould v. Evansville & C.R. Co., 91 U.S. 526; and see Lawlor v. National Screen Service Corp., 349 U.S. 322, and Von Moschzisker, Res Judicata, 38 Yale L.J. 299, 318-420. We are clear, therefore, that the case must go back for some less final disposition at least permitting the plaintiffs to amend. But because of their practical importance in routine litigation, we think some elaboration of both the pleading and the joinder issues is desirable.
It is true that antitrust litigation may be of wide scope and without a central point of attack, so that defense must be diffuse, prolonged, and costly. So many defense lawyers have strongly advocated more particularized pleading in this area of litigation;*fn2 and recently the judges in the court below have treated it as accepted law that some special pleading - the extent is left unclear - is required in antitrust cases.*fn3 But it is quite clear that the federal rules contain no special exceptions for antitrust cases. When the rules were adopted there was considerable pressure for separate provisions in patent, copyright, and other allegedly special types of litigation. Such arguments did not prevail; instead there was adopted a uniform system for all cases*fn4 - one which nevertheless allows some discretion to the trial judge to require fuller disclosure in a partcular case by more definite statement, F.R. 12(e), discovery and summary judgment, F.R. 26-35, 56, and pre-trial conference, F.R. 16. Perhaps the leading case making this clear is the oft-cited decision in Package Closure Corp. v. Sealright Co., 2 Cir., 141 F.2d 972, 978, where the late Judge Frank, speaking for the court, said:
"It is urged by defendants that a stricter requirement as to a plaintiff's pleading in treble damage actions is necessary because of the expense often involved in such litigation. But in that respect such actions are not unique, for huge expense is involved, too, in many a patent infringement suit and in many a suit where jurisdiction rests on diversity of citizenship. To impose peculiarly stiff requirements in treble damage suits will be to frustrate the Congressional intent. * * * We see no reason whatever to believe that the Supreme Court intended its liberal rules governing pleadings to be inapplicable to a suit for treble damages."
And he goes on to point out that if
"the defendants, before trial, desire more detailed information from plaintiff, they can seek it by interrogatories, deposition or discovery." 141 F.2d 972, 979.
To the same general effect is United States v. Employing Plasterers Ass'n of Chicago, 347 U.S. 186, where the Supreme Court reversed the dismissal of a complaint, Howard v. Local 74 of the Wood, Wire & Metal Lathers, International Union of Chicago, D.C.N.D. Ill., 118 F.Supp. 387, for failure to state a cause of action for relief under the Sherman Act. As the opinions above and below show, the complaint was most broad and general. Speaking for the Court, Mr. Justice Black said, 347 U.S. 186, 189:
"The Government's complaint may be too long and too detailed in view of the modern practice looking to simplicity and reasonable brevity in pleading. It does not charge too little. It includes every essential to show a violation of the Sherman Act. And where a bona fide complaint is filed that charges every element necessary to recover, summary dismissal of a civil case for failure to set out evidential facts can seldom be justified. If a party needs more facts, it has a right to call for them under Rule 12(e) of the Federal Rules of Civil Procedure. And any time a claim is frivolous an expensive full dress trial can be avoided by invoking the summary judgment procedure under Rule 56."
A like ruling is made in the companion case of United States v. Employing Lathers Ass'n of Chicago, 347 U.S. 198, 200. And in Radovich v. National Football League, 352 U.S. 445, 453, 454, the Court, in upholding a broad general complaint, stressed that it should not add pleading requirements to burden the private antitrust litigant favored by Congress beyond what is specifically set forth in the antitrust laws. Other cases of like tenor are cited in the footnote.*fn5
In asserting a special rule of pleading for antitrust cases, our brothers below have in terms rejected the "modern 'notice' theory of pleading" as here insufficient*fn6 and said that an antitrust complaint must "state a cause of action instead of merely stating a claim."*fn7 But while these essentially nebulous concepts often creep into pleading discussions, they are no part of the rules themselves, but were in fact rejected for more precise formulations. It is well to go back to the rules themselves and their intended purpose. To this end we accept as definitive the precise statement formulated by the Advisory Committee in the light of both purpose and experience to answer criticisms based on some dispute in the interpretation of the rules. This appears in the Report of Proposed Amendments, October 1955, pp. 18, 19, and Preliminary Draft, May 1954, pp. 8, 9, as a note explanatory of F.R. 8(a)(2) and the Committee's decision to recommend the retention of that rule in its present form. The following extracts therefrom are directly pertinent to our present discussion:
"The intent and effect of the rules is to permit the claim to be stated in general terms; the rules are designed to discourage battles over mere form of statement and to sweep away the needless controversies which the codes permitted that served either to delay trial on the merits or to prevent a party from having a trial because of mistakes in statement. * * * It is accordingly the opinion of the Advisory Committee that, as it stands, the rule adequately sets forth the characteristics of good pleading; does away with the confusion resulting from the use of 'facts' and 'cause of action'; and requires the pleader to disclose adequate information as the basis of his claim for relief as distinguished from a bare averment that he wants relief and is entitled to it."
Turning to the complaint before us, we remark that in outward form at least it is an imposing document consisting of twelve or more printed pages. Both sides purport to rely on the pleading admonitions in some of the district court cases we have referred to:*fn8 the defendants to show, as the district court indeed held, that the plaintiffs have not heeded these warnings, and the plaintiffs to claim that they have and have expanded their allegations accordingly. At any rate, we have one result, which seems to be invariable when detailed pleading is stressed, namely, a vast increase in verbiage. The complaint is filled with the pleading of conclusions of both fact and law; it is far from that lean and terse allegation in sequence of events as they have happened which we have stressed.*fn9 But we are not conducting exercises in pleading; we must look beyond the mere mountain of words to the meaning sought to be conveyed. So looking we can have no doubt that plaintiffs say the ...