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JOSEPH MULLER CORP. ZURICH v. GAZOCEAN INTL.

May 19, 1975

JOSEPH MULLER CORPORATION ZURICH, Plaintiff,
v.
GAZOCEAN INTERNATIONAL, S.A., GAZOCEAN FRANCE, GAZOCEAN ARMEMENT, TECHNIGAZ FRANCE, MUNDO GAS, S.A., PETROMAR SOCIETE ANONYME, MULTINATIONAL GAS & PETROCHEMICAL COMPANY, MULTINATIONAL GAS & PETROCHEMICAL SERVICES LTD., JACQUES BAYLE, RENE BOUDET, JOHN DOE and RICHARD ROE, JOHN DOE CORPORATION and RICHARD ROE CORPORATION being fictitious, their real names and identities presently unknown to the plaintiff, Defendants



The opinion of the court was delivered by: KNAPP

MEMORANDUM AND ORDER

 KNAPP, D.J.

 Defendants Gazocean International, S.A.; Gazocean France; Gazocean Armement; Technigaz France; Mundo Gas, S.A.; Petromar Societe Anonyme; and Rene Boudet move to dismiss this action as barred by both the doctrine of res judicata and by the applicable statute of limitations. For the reasons stated herein, the motion to dismiss will be granted in part and denied in part.

 I. Facts

 The complaint under attack (the Second Complaint) was filed by the plaintiff just two weeks after the Court of Appeals had affirmed this court's order dismissing a prior complaint (the First Complaint) with respect to four of the present moving defendants -- Gazocean International, S.A., Gazocean France, Mundo Gas, S.A., and Petromar Societe Anonyme. See, Joseph Muller Corp. Zurich v. Societe Anonyme de Gerance et d'Armement (Muller v. SAGA) (2d Cir. 1974) 508 F.2d 814.

 The first complaint was dismissed for lack of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. In that action, which was filed in September, 1969, plaintiff had instructed the Marshal to serve only two of six named defendants. Four years later, plaintiff caused service to be made upon the remaining defendants, who thereupon moved to dismiss under Rule 41(b). That motion was granted by this court, and final judgment was entered on June 24, 1974. The Court of Appeals affirmed that decision on December 31, 1974. Rule 41(b) specifically establishes that the dismissal of the first complaint operated "as an adjudication upon the merits."

 The plaintiff is a Swiss business enterprise which trades in chemicals and other raw materials. The subject matter of both complaints is a claim that all the defendants conspired to monopolize the transportation of liquefied gases from the United States to Europe, particularly a gas known as vinyl chloride monomer (V.C.M.), a petroleum by-product. In brief, plaintiff alleges in both complaints that with respect to V.C.M. transport, the defendants monopolized and engaged in a conspiracy to monopolize, to charge parallel prices, to refuse to deal with plaintiff, and to engage in certain unfair competitive practices, all in violation of the antitrust laws of the United States.

 II. Res Judicata

 All seven of the moving defendants seek dismissal of the second complaint on the ground of res judicata. Under this well-established doctrine, a judgment "on the merits" in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. *fn1" Lawlor v. National Screen Service (1955) 349 U.S. 322, 99 L. Ed. 1122, 75 S. Ct. 865. The prior judgment is conclusive, not only as to matters which were decided, but also as to all matters which might have been decided between the parties. Engelhardt v. Bell & Howell Co. (8th Cir. 1964) 327 F.2d 30.

 After a careful scrutiny of the two complaints, it seems clear that for the most part the cause of action involved in the second is the same as the one asserted in the first. In both, the same basic antitrust conspiracy is alleged, as well as many of the same acts claimed to be in furtherance of that conspiracy. Almost all the allegations in both complaints deal with events which occurred in 1968 and 1969. Although certain new facts are mentioned in the second complaint -- some of which occurred in 1970 after the filing of the first -- the presence of such new facts in the second in no way renders the doctrine of res judicata inapplicable. See, Moore's Federal Practice, Vol. 1B, § 0.410 [1] at 1154-1155. The crucial issue is whether the causes of action are identical.

 The only substantive way in which the first and second complaints differ with respect to causes of action is that in the latter pleading, the plaintiff has alleged that the conspiracy is one that has continued from 1971 until 1975. The Supreme Court in Lawlor v. National Screen Service, supra, 349 U.S. 322, has held that in antitrust actions, a suit, based upon a course of wrongful conduct occurring subsequent to a judgment in a prior suit between the same parties, states a different cause of action than that of the first suit and is not barred by the principles of res judicata, even if both suits involved basically the same course of wrongful conduct. See also United States v. General Electric Company (S.D.N.Y. 1973) 358 F. Supp. 731, 739-740 and cases there cited.

 Thus, while the doctrine of res judicata would bar the second complaint for acts occurring prior to June 24, 1974, the date of the judgment dismissing the first complaint, the doctrine would be inapplicable to wrongful conduct alleged to have occurred subsequent to that date. In the second complaint itself, except for the general statement charging a continuing conspiracy, there is not one specific act or alleged course of conduct that is claimed to have occurred after the critical date.

 Based on the foregoing, it thus seems appropriate to dismiss the second complaint in its entirety with respect to the four defendants who were parties to the first action -- Gazocean International, S.A.; Gazocean France; Mundo Gas, S.A.; and Petromar Societe Anonyme, without prejudice however to plaintiff's right to file a new complaint which would allege facts suggesting the existence of a conspiracy subsequent to June 24, 1974.

 As to the other three moving defendants, the motion to dismiss on the ground of res judicata must be denied. These defendants were not parties to the first action, and can claim the protection of the doctrine of res judicata only by contending that they are privies to either Gazocean International, S.A., or Gazocean France. On the record now before the court, a determination of privity cannot be made. The motion is therefore denied as to those defendants, ...


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