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Kreager v. General Electric Co.

decided: May 13, 1974.

JAMES SCOTT KREAGER, PLAINTIFF-APPELLANT,
v.
GENERAL ELECTRIC COMPANY, FRED J. BORCH, HERMAN L. WEISS, JOHN B. MCKITTERICK, JOHN P. DONOHUE, DAVID W. BURKE, DONALD D. SCARFF, THOMAS CASTLE, ROBERT J. DIEFENTHALER, INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, HAROLD S. GENEEN, RAYMOND L. BRITTENHAM, HENRY E. BOWES, ROBERT J. THEIS, JAMES PAUL JANNUZZO, JAMES A. O'CONNELL, JOHN T. THOMPSON, CORNELL REMSEN, EDWARD J. FITZPATRICK AND TOSHIBA AMERICA, INC., DEFENDANTS-APPELLEES. JAMES SCOTT KREAGER, PLAINTIFF-APPELLANT, V. GENERAL ELECTRIC COMPANY, HERMAN L. WEISS, DAVID W. BURKE, JOHN B. MCKITTERICK, JOHN P. DONOHUE, LUTHER EARL BIRDZELL, JR., TOSHIBA AMERICA, INC. AND TOKYO SHIBAURA ELECTRIC CO., LTD., DEFENDANTS-APPELLEES



Appeals (1) from a judgment entered after jury trial in the Southern District of New York, Edward Weinfeld, District Judge, and (2) from an order entered in the Southern District of New York, Kevin T. Duffy, District Judge, dismissing the actions of Mercu-Ray Industries, Inc. and that of its sole stockholder, James Scott Kreager, respectively, the complaints in which alleged identical violations of Sections 1 and 2 of the Sherman Act and pendent claims of fraud and deceit. Affirmed.

Danaher,*fn* Lumbard and Timbers, Circuit Judges.

Author: Timbers

TIMBERS, Circuit Judge:

These consolidated appeals bring up for review the dismissal of private antitrust litigation that this pro se appellant has had pending in one form or another in the district court for more than six years.

In Kreager (Mercu-Ray Industries, Inc.) v. General Electric Company, et al. (No. 73-1987), Kreager appeals pro se*fn1 from a judgment entered in the Southern District of New York after a jury trial before Edward Weinfeld, District Judge. At the close of all of the evidence, the court dismissed the claims under Section 2 of the Sherman Act, all pendent claims based upon fraud and deceit (these claims not having been pleaded but having been considered by the court to have been tried), and all claims against certain of the individual defendants. The court submitted the conspiracy claims under Section 1 of the Sherman Act to the jury which returned a verdict in favor of all defendants.*fn2 Judgment dismissing this action was entered June 27, 1973.

On the same day, June 27, Kreager commenced a second action but asserted essentially the identical claims as those in the action dismissed earlier that day. In due course an order was entered on September 25, 1973 in this action in the Southern District of New York, Kevin T. Duffy, District Judge, dismissing the complaint on the ground of res judicata, the second action being barred by the judgment dismissing the first action. It is from the order dismissing this second action that Kreager appeals pro se in Kreager v. General Electric Company, et al. (No. 73-2577).

Since we find no merit in either appeal, we affirm.

I.

The essential facts underlying both appeals may be briefly summarized.

Kreager is the president and sole stockholder of Mercu-Ray Industries, Inc., an Ohio corporation. Mercu-Ray transacts no business. Its only asset is a patent issued in 1957 relating to an advertising sign.*fn3 The sign features a glass tubular bulb which requires no direct electrical connections but is activated by energy transmitted over high frequency radio waves. Despite claims that commercial acceptance of the sign would revolutionize the lighting industry, Kreager has been wholly unsuccessful in his countless attempts to interest others in marketing the device. The patent has never been licensed. The sign has never been manufactured or sold commercially.*fn4

During the summer of 1967, Kreager approached representatives of the corporate defendants, General Electric Company (GE) and International Telephone and Telegraph Corporation (ITT). He sought their help in the development and production of his sign. Both agreed to evaluate its commercial possibilities. Kreager made simultaneous importunate demands upon both for an immediate response. Eventually they both advised Kreager on September 7, 1967 that they were not interested in his proposals. One of the reasons given by GE was the prohibitive cost of the necessary hand blown glass tubing. Unconvinced, Kreager contacted representatives of Toshiba America, Inc. (Toshiba)*fn5 to inquire whether its Japanese affiliates were equipped to manufacture the tubing. On September 11, 1967, he received a negative response.

Predicated on these three rejections, two on the same day, Kreager commenced the first of his private antitrust actions in the Southern District of New York on March 5, 1968. He sued in the name of his wholly owned corporation, Mercu-Ray. He alleged that GE, ITT, Toshiba and certain officers and employees of GE and ITT had conspired during the period July 28, 1967 to September 1967 to prevent Mercu-Ray's commercial exploitation of its product and to monopolize the development, manufacture and sale of electronic advertising signs, all in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. ยงยง 1 and 2 (1970). After the pleadings were closed and extensive discovery had taken place, the action was tried before Judge Weinfeld and a jury in June 1973 with the result stated above.

The complaint in Kreager's second action, commenced simultaneously with the dismissal of the first, virtually tracked the complaint in the prior action, except that it alleged that the defendants continued their conspiracy against Mercu-Ray by defending the first action. Kreager substituted himself for Mercu-Ray as plaintiff in the second action; he dropped ITT, its officers and employees, and several of the GE officers and employees; and he added Luther E. Birdzell, Jr., a GE employee, and Tokyo Shibaura Electric Co., Ltd. (Toshiba's Japanese parent) as parties defendant. Upon motions by defendants to dismiss on various grounds, Judge Duffy, by a memorandum and order ...


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