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LIEBERTHAL v. NORTH COUNTRY LANES

September 12, 1963

Jerome LIEBERTHAL, Plaintiff,
v.
NORTH COUNTRY LANES, INC., Sports Arenas, Inc., Jack E. Gellman, Bowlers Management, Inc., Plattsburgh Lanes, Inc., Consolidated Bowling Corp., and Robert Sidel, Defendants



The opinion of the court was delivered by: WYATT

Three of the named defendants -- North Country Lanes, Inc., Sports Arenas, Inc. and Robert Sidel -- move to dismiss the action because the amended complaint fails to state a claim against defendants upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

The action is for treble damages under the Sherman Anti-Trust Act (15 U.S.C. § 1 and following, specifically § 15). There is no diversity of citizenship alleged; the jurisdiction of this Court is invoked solely under the authority of 15 U.S.C. § 15.

The action was dismissed by Chief Judge Ryan on April 26, 1963, because the complaint did not state a claim upon which relief could be granted. The memorandum opinion by Chief Judge Ryan stated in substance that the averments of the complaint were not sufficient to show any restraint of interstate, as opposed to intrastate, commerce.

 Leave was given by Chief Judge Ryan to serve an amended complaint and plaintiff did so. Thereafter this motion was made.

 Decision of the motion requires examination of (a) the complaint, (b) the reason it was held insufficient by Chief Judge Ryan, (c) what additional averments are contained in the amended complaint, and (d) whether the averments in the amended complaint as added to are now sufficient.

 The complaint alleged in substance that plaintiff had leased to North Country premises for the operation of bowling alleys (presumably in Plasttsburgh, New York, but this is not specifically alleged), that defendants Bowlers Management, Consolidated and Plattsburgh Lanes operated bowling alleys in the Plattsburgh area, that all the defendants conspired to cause North Country to cancel its lease with plaintiff and North Country did so, and that this action reduced and restricted the bowling alley business in the Plattsburgh area to the benefit of the operators other than North Country. The connection with interstate commerce was apparently based on an averment that the Plattsburgh area drew trade (and presumably bowlers) from Vermont and Canada.

 Chief Judge Ryan found the complaint insufficient because no sufficient effect on interstate commerce was alleged and specifically that crossing by bowling customers of state or international borders did not change an intrastate activity into an interstate one. Chief Judge Ryan, referring to Monument Bowl, Inc. v. Northern Cal. Bowling Prop. Ass'n, 197 F.Supp. 208 (N.D.Cal.1961), said that 'the operation of a bowling alley is normally essentially one of local character'.

 The amended complaint continues to allege that the Plattsburgh area draws trade from Vermont and Canada, but it contains additional averments that

 a. the building leased by plaintiff to North Country had been erected, the equipment had not yet been installed, and the lease included a percentage of the returns to be received from the bowling business and from the sale of items of merchandise (presumably food and beverages principally);

 b. bowling alleys in Vermont and Canada compete with those in the Plattsburgh area;

 c. North Country actively solicited the patronage of bowling leagues in Vermont and Canada;

 d. North Country advertised in Canadian and Vermont newspapers, soliciting customers in Canada and Vermont to come to Plattsburgh to bowl and 'used radio and television media' (it is not stated where) also to solicit such customers;

 e. North Country and the other defendant operators of bowling alleys brought, or intended to bring, into Plattsburgh bowling alley equipment which moved in (or would move) in interstate commerce from outside New York;

 f. the equipment 'scheduled to be brought into Plattsburgh' in interstate commerce was substantial and included ...


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