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December 7, 1965

Reines Distributors, Inc., etc., Plaintiff
Admiral Corporation et al., Defendant v. Empire State Insulation Co., Inc., et al.

Metzner, District Judge.

The opinion of the court was delivered by: METZNER

METZNER, District Judge:

Plaintiff Reines moves for an order pursuant to Fed. R. Civ. P. 42(b) for a separate trial of the issues of whether the defendant Admiral Corporation's branch located in Newark, New Jersey (herein called Newark), was throughout the period relevant in this action, a "purchaser" from defendant within the meaning of section 2(a) and section 2(e), and a "customer" of defendant within the meaning of section 2(d), of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. §§ 13(a), (d) and (e); and a "distributor" within the meaning of section A(3) of the distributor contract dated January 1, 1957, between defendant and plaintiff.

 To succeed under its Robinson-Patman causes of action, plaintiff must prove:

(1) Distributors other than plaintiff were purchasers from defendant.
(2) There was discrimination by defendant in price and service between such purchasers and plaintiff.
(3) Plaintiff and the favored [distributors] were competitors for the same customers.
(4) Damage.

 It is plaintiff's contention that Newark was an independent distributor of defendant, and therefore a purchaser-customer within the meaning of sections 2(a), (d) and (e) of the Robinson-Patman Act, and in the same relationship to defendant as plaintiff and other distributors throughout the country. If this be the case plaintiff intends to prove its claims against defendant

"solely on the prices, services and facilities and other preferences afforded Newark and will wholly disregard the approximately 79 other Admiral distributors during the relevant period."

 If it fails to prove that Newark was an independent distributor, then it will seek to prove its claims against Admiral Corporation by reason of the preferences, etc., given to the other 79 distributors.

 Thus if plaintiff is initially successful, the parties will not have to prepare or try the issues of discrimination, competition, damage or Robinson-Patman defenses with respect to 79 distributors referred to in plaintiff's complaint. If plaintiff should lose on the issue of whether Newark was independent, a second trial would be had after the case was prepared as to the 79 other distributors. In that event there would be no saving of time, but there would be no duplication of fact presentation. The pertinent portion of Fed. R. Civ. P. 42(b) states that

"The court in furtherance of convenience . . . may order a separate trial of . . . any separate issue".

 The purpose of the rule is to prevent delay and expense. See 5 Moore, Federal Practice P42.03 (2d ed. 1964). Generally a single trial tends to lessen delay, expense and inconvenience to all concerned. See e.g. Drake v. Handman, 30 F.R.D. 394 (S.D.N.Y. 1962); Grissom v. Union Pacific R. Co., 14 F.R.D. 263 (D. Colo. 1953). When there is a possibility, however, of shortening the trial considerably by holding a separate trial on an issue, the court should exercise its discretion, Collins v. Metro-Goldwyn Pictures Corp., 106 F.2d 83, 85 (2d Cir. 1939), and try the issue separately if such a procedure will not prejudice either side. Rossano v. Blue Plate Foods, 314 F.2d 174 (5th Cir.), cert. denied, 375 U.S. 866, 11 L. Ed. 2d 93, 84 S. Ct. 139 (1963) (agency in negligence action); Bowie v. Sorrell, 209 F.2d 49 (4th Cir. 1953) (release); Bernardo v. Bethlehem Steel Co., 200 F. Supp. 534 (S.D.N.Y. 1961) (whether drydock was a vessel); Huffmaster v. United States, 186 F. Supp. 120 (N.D. Calif. 1960) (whether flood was an Act of God); United States v. Mulligan, 177 F. Supp. 384 (D. Ore. 1959) (validity of mining claim); Michael Rose Prods. v. Loew's Inc., 19 F.R.D. 508 (S.D.N.Y. 1956) (release); Hall Laboratories v. National Aluminate Corp., 95 F. Supp. 323 (D. Del. 1951) (prior art). See Miner, Court Congestion, A New Approach, 45 A.B.A.J. 1265 (1959).

 The substantial portion of evidence as to whether or not Newark was a purchaser-customer of defendant will be addressed to proving that Newark acted independently of defendant. For example, plaintiff will attempt to show that Newark had the right to engage and discharge its own personnel, select its own merchandise and buy only what it chose, right to fix prices on resale, to accept or reject factory promotions, method of invoicing, maintenance of separate books of account, right to contract for its own special services, negotiate pricing, advertising, allowances and special promotional deals with its own customers, maintenance of separate bank accounts. This proof would support the claim that Newark exercised dominion and control over goods, which seems to be an essential in arriving at a determination that a seller-purchaser relationship exists. Baim & Blank, Inc. v. Philco Corp., 148 F. Supp. 541 (E.D.N.Y. 1957); Students Book Co. v. Washington Law Book Co., 98 U.S. App. D.C. 49, 232 F.2d 49 (1955), cert. ...

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