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LEHMANN TRADING CORP. v. J & H STOLOW

May 27, 1960

LEHMANN TRADING CORPORATION, Ghana Philatelic Agency, Ltd., Togo Philatelic Agency, Ltd., and Suriname Philatelic Agency, Ltd., Plaintiffs
v.
J & H STOLOW, INC., Fatoullah & Lazar, Inc., Khanbaba Fatoullah and Nedjat Lazar, individually and as co-partners doing business as Fatoullah and Lazar, Francis J. Parker and Marian Parker, individually and as co-partners doing business as Tribune Stamp Co., Jack Kantor, doing business as Kent Stamp Company, Leonid Tankel, doing business as General Stampt Co., John H. Lepane, Jack Rubin and Julius H. Stolow, Defendants



The opinion of the court was delivered by: DIMOCK

Plaintiffs in this private antitrust action move under Rule 12(f), F.R.C.iv.P., to strike certain defense as 'insufficient in law'. As enumerated in defendants' answer these defense are:

'Second Defense

 '13. The complaint fails to state a claim against any of the defendants upon which relief can be granted.

 'Third Defense

 '14. Plaintiffs have participated to such an extent in the activities complained of and have so enjoyed the benefits thereof, and have themselves so violated the antitrust laws, as to be disentitled from maintaining any of the alleged rights of action set forth in the complaint.

 'Fourth Defense

 '15. Plaintiff Lehmann Trading Corporation has failed to state any claim in the complaint against the defendants upon which relief can be granted. Plaintiff, as a stockholder, has not suffered any injury to its business or property within the meaning and intent of the antitrust laws by reason of any alleged violations of these laws by any of the defendants.'

 A defendant has a choice of two ways to raise the point of failure of the plaintiff to state a claim upon which relief can be granted. He may, under Rule 12(b), F.R.Civ.P., assert the 'defense' by motion. This motion need do no more than use the words of the rule. Form 19, Appendix of Forms, F.R.Civ.P. Defendant may, in the alternative, under Rule 12(h), make the 'defense' at the trial on the merits.

 Rule 12(b)(6) permits a defendant to assert in his answer the 'defense' of failure to state a claim upon which relief can be granted. Form 20 gives the same form for the defense as Form 19 gives for the motion. This privilege to state the defense in the answer does not enlarge the rights of the defendant but serves as an invitation to the plaintiff to test the sufficiency of the complaint in advance of trial by moving under Rule 12(f) which empowers the court on such a motion to 'order stricken from any pleading any insufficient defense'. Plaintiffs have made such a motion here.

 Defendants do not accept this conclusion that such a motion raises the question of the validity of the complaint. They argue that on such a motion the only question presented is whether the defendant have correctly copied out the words of the rule 'failure to state a claim upon which relief can be granted'. I do not believe that the rules contemplate any such idle ceremony. A plaintiff's motion under Rule 12(f) to strike out as insufficient a defense that the complaint does not state a claim upon which relief can be granted presents the question whether the defense is insufficient because the complaint is sufficient. See Ferreira v. Sawayama-Kisen K.K., D.C.S.D.N.Y., 171 F.Supp. 96.

 I must therefore proceed to the question of the sufficiency of the complaint. According to the complaint, which asks for an injunction and damages, plaintiffs are agent and subagents of certain foreign governments for the sale of stamps. The unlawful activities alleged against defendants are a conspiracy to induce and compel plaintiffs to grant them discriminatorily lower prices in the sale of stamps than charged to defendants' competitors, to destroy the good will and business of plaintiffs, to eliminate plaintiffs from the stamp vending industry, and to destroy the value of the stamps dealt in by plaintiffs. Plaintiffs also allege certain overt acts in furtherance of the conspiracy.

 It is idle to attack such a complaint in an antitrust case in this circuit. Nagler v. Admiral Corporation, 2 Cir., 248 F.2d 319; see also Rosen v. Texas Company, D.C.S.D.N.Y., 161 F.Supp. 55.

 The motion to strike out the second defense is granted.

 Plaintiffs argue that the allegations of the third defense are insufficient even to give notice of the defendants' position. I have no doubt that the requirements for an affirmative defense are no more stringent than those for a complaint. On that analogy a defense is good unless it appears to a certainty that plaintiffs would succeed despite any state of facts which could be proved ...


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