Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ROSEN v. TEXAS CO.

April 16, 1958

Samuel ROSEN, doing business as J. & H. Service Station, Plaintiff,
v.
The TEXAS COMPANY, Defendant



The opinion of the court was delivered by: DIMOCK

Defendant moves for orders (1) under Rule 12(b) F.R.Civ.P., to dismiss this action for failure of the complaint to state a claim upon which relief can be granted, and, in the alternative (2) under Rule 12(f), to strike out a certain allegation as redundant, a conclusion of law and scandalous, and (3) under Rule 12(e), for a more definite statement.

Plaintiff sues for treble damages alleged to have resulted from a violation of the Robinson-Patman Act, 15 U.S.C. § 13. The complaint alleges that plaintiff maintains a gasoline station in Nassau County, that defendant sells gasoline 'in various states of the United States as well as New York State', that defendant has unlawfully discriminated in price among 'gas stations similar to plaintiff's all operating in the County of Nassau and adjoining counties', that plaintiff has been injured and that the discrimination 'destroys competition and restrains trade and tends to create monopoly'.

 Under a system of procedure where the function of pleading was to reach and define the issues or to develop the facts a glance would suffice to demonstrate the insufficiency of the complaint. That is not, however, the function of pleading under the Federal Rules of Civil Procedure. As the Supreme Court said in Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 388, 91 L. Ed. 451, 'The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial.'

 Nevertheless Rule 8(a) requires that a complaint shall contain 'a short and plain statement of the claim showing that the pleader is entitled to relief' and subsequent rules speak of the defense of 'failure to state a claim upon which relief can be granted'. Rules 12(b), 12(h).

 Even after a score of years of experience it is still doubtful just how much a complaint must state to avoid dismissal. The forms of complaint contained in the appendix to the Rules pursuant to Rule 84 are, in general, the forms which would have been used under the old system of pleading in the absence of the old rule against pleading conclusions. Nothing essential to the plaintiff's recovery is omitted except details. The litigants have, however, failed to follow these good examples and have been upheld by the courts in their failure. The principle is now expressed by many courts by the statement that a complaint will not be dismissed for failure to state a claim on which relief can be granted 'unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.' 2 Moore's Federal Practice, 2nd Ed. § 12.08, p. 2245.

 This would seem to mean that all a plaintiff need state is what he wants from the court, but the Advisory Committee on the Rules seems to cling to the words of Rule 8(a) that the pleader must show that he is entitled to relief. In the Advisory Committee's Report of Proposed Amendments, October 1955, pp. 18-19, and Preliminary Draft, May 1954, pp. 8, 9, as a note explanatory of Rule 8(a)(2), the Committee stated its opinion that Rule 8(a) 'requires the pleader to disclose adequate information as to the basis of his claim for relief as distinguished from a bare averment that he wants relief and is entitled to it'.

 Evidently the pleader must do something more than avoid saying anything that would make it appear 'to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim'. He must 'disclose adequate information as to the basis of his claim for relief'.

 The Federal Rules of Civil Procedure contain no statement of the function of pleadings under them and, so far as I can gather, the appellate courts have not yet produced a body of authority sufficient to answer that question. Until such a body of authority has been produced the lower courts will have to proceed upon precedent rather than principle. That I shall attempt to do.

 Defendant's main attack upon the complaint is based on its failure to state that the commerce with plaintiff in which the alleged wrongs were committed was interstate commerce. The complaint does, however, say that defendant sells 'gasoline, oil and sundry products for automobiles to gasoline stations in various States of the United States, as well as New York State.' The theoretical possibility that, under this allegation, all of the products had their origin in New York so that defendant's New York business was intra-state is so remote as to be negligible. There is thus an allegation that defendant is engaged in interstate commerce and the only defect is a failure to state that its commerce with plaintiff in which the alleged wrongs were committed was interstate. The Rules certainly contemplate that such an allegation would be appropriate. Form 14 in the Appendix, entitled 'Complaint for Negligence under Federal Employer's Liability Act (45 U.S.C.A. § 51 et seq.)', alleges not only that the employer was engaged in interstate commerce but that the injured employee was so engaged. Nevertheless the complaint here is exactly like that in United Grocers' Company v. Sau-Sea Foods, D.C.S.D.N.Y., 150 F.Supp. 267, and the holding in that case that the defect was fatal was disapproved by the Court of Appeals in Nagler v. Admiral Corporation, 2 Cir., 248 F.2d 319, 322, 324, 325.

 In addition, in support of its motion based on alleged failure to state a claim, defendant urges that the complaint does not state that there was a competitive relationship between plaintiff and the allegedly favored customers or state that the anti-competitive effects prohibited by the statute have resulted or specify a time when the unlawful events occurred. As authority for this position few cases in the Supreme Court or this circuit are cited and none of those involve pleading. Insofar as these omissions from the complaint exist none of them make it appear 'to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim' nor do they result in failure to 'disclose adequate information as to the basis of his claim for relief'.

 The motion to dismiss for failure to state a claim is therefore denied.

 The allegation that defendant wants stricken out is 'That the defendant has unlawfully discriminated in price'. The complaint alleges that jurisdiction is based on title 15 sections 13 and 13a of the U.S.Code. Section 13 makes it unlawful 'to discriminate in price between different purchasers'. Plaintiff's allegation that defendant 'has unlawfully discriminated in price', continues: 'in that defendant has sold gasoline of the same quality and grade to other gas stations' and so on through a catalogue of alleged wrongs. This allegation that these wrongs constitute unlawful price discrimination may be redundant and a conclusion of law and may even be scandalous if untrue but the rule is that motions to strike will be granted only where the answering pleader is prejudiced by the presence of the offending matter. American Machine & Metals v. De Bothezat Impeller Co., D.C.S.D.N.Y., 8 F.R.D. 306. Certainly defendant is not prejudiced by this allegation of plaintiff's claim in the words of the statute on which plaintiff relies.

 The motion to strike is denied.

 Defendant's next motion is the one prescribed in Rule 12(e) which permits a motion for 'a more definite statement' if a pleading 'is so vague or ambiguous that a party cannot ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.