It is not necessary or proper for the pleader to set out in his complaint the circumstances from which he draws his conlusions. Nor is it necessary that such circumstances be set out to enable the defendant to answer. The complaint in this case charges agreements and understandings between the defendants of a nature condemned by the Sherman Anti-Trust Act and the Clayton Act, and with sufficient particularity to enable the defendants to answer."
In C.F. Simonin's Sons, Inc. v. American Can Co., D.C., 30 F.Supp. 901, on page 902, in a civil action for treble damages under the Sherman Anti-Trust Act, Judge Kirkpatrick has this to say concerning the sufficiency of the complaint: "Under the new Rules, 28 U.S.C.A. following section 723c, it is no longer proper to state evidentiary facts in the complaint. Rule 8(a) prescribes merely a short and plain statement of the claim, showing that the plaintiff is entitled to relief; Rule 8(e)(1) that each averment of a pleading shall be simple, concise, and direct; and Rule 12(b)(6) that the sufficiency of the complaint may be raised by a motion based upon 'failure to state a claim upon which relief can be granted.' In all these provisions the word 'facts' is rather conspicuously absent, and there can be very little doubt, whatever the prior practice may have been, there is no longer any necessity to state such facts as have been described as 'evidentiary' as distinguished from 'ultimate,' nor is it good practice."
Plaintiff is also complaining that the counterclaim contains a duplication of facts alleged to constitute a violation of two or more sections of the anti-trust laws. We see no merit in this contention. There may be facts that are common to more than one stated cause of action; and there would seem to be no harm in incorporating by reference in a following cause of action what has been stated in regard to such common facts in a previous count or statement of a cause of action.
As to the alleged insufficiency of the allegations of the amended counterclaim concerning the acquisition by plaintiff of patents in the lubricating field (paragraphs 11, 49, 100, 111, and 120), there is no merit in this contention. The allegation is to the effect that plaintiff bought up practically all patents in the lubricating-equipment business, not for the purpose of marketing the devices covered by the patents, but for the purpose of intimidating and overwhelming and coercing the trade into dealing only with the plaintiff. If so, that would constitute a violation of the Sherman Act. See Standard Sanitary Manufacturing Co. v. United States, 226 U.S. 20, 33 S. Ct. 9, 57 L. Ed. 107; Standard Oil Co. v. United States, 283 U.S. 163, 51 S. Ct. 421, 75 L. Ed. 926; Lynch v. Magnavox Co., 9 Cir., 94 F.2d 883, 889, 890; Straus and Straus v. American Publishers' Ass'n, 231 U.S. 222, 234, 235, 34 S. Ct. 84, 58 L. Ed. 192, L.R.A. 1915A, 1099, Ann.Cas.1915A, 369.
As to the charge against plaintiff of bringing unwarranted patent suits, it is true that the plaintiff had a legal right to bring suits on patents owned by it for alleged infringement. But where, as alleged in the amended counterclaim, such suits were brought without probable cause, that is an element to consider in connection with the charges made by the defendant of violation by plaintiff of the anti-trust laws.
Concerning the charge made by defendant that plaintiff bought off defendants to obtain favorable decrees, that certainly is an element to be considered in connection with the charge that plaintiff violated the anti-trust laws. While it may be proper for parties to settle and compromise litigations, yet, if their conduct in that respect is in pursuance of a plan to violate the anti-trust laws, it may be considered in connection with the plan charged in the amended counterclaim.
The same thing is true with reference to the circularization of court decisions. The doing of that is not unlawful in itself, but may be considered in connection with the general plan charged against the plaintiff. The same thing is true as to the alleged false marking of lubricating equipment with inapplicable patent numbers. That is not of itself a violation of the anti-trust laws, but may be considered in connection with the alleged conspiracy to violate those laws. This is also true with reference to charge that plaintiff acquired competing businesses. That may be proper, but where the result has been a substantial restraint of interstate commerce, a case is made out.
The counterclaim alleges that plaintiff organized a corporation known as Aro Equipment Corporation, holding it forth as an "independent" in the lubricating-equipment field (paragraphs 15, 18, 100, and 111 of Amended Counterclaim) in pursuance of its alleged conspiracy to restrain interstate commerce. The plaintiff alleges this is wanton and reckless pleading, in view of the fact the defendant's counsel unsuccessfully raised the same issues in another patent infringement suit; i.e., Aro Equipment Corporation v. Herring-Wissler Co., 8 Cir., 84 F.2d 619. Be that as it may, it has nothing to do with the sufficiency of the allegations of the counterclaim in the instant case, in which the plaintiff is charged with a conspiracy to restrain trade. The acts of the plaintiff as to the Aro Equipment Corporation, coupled with the other acts alleged in the amended counterclaim, are sufficient to sustain the amended counterclaim.
As to the alleged contracts of plaintiff with patent owners to sue defendant, while it may be true that the fact plaintiff secured other persons to sue defendant in patent infringement suits would not of itself sustain a charge that plaintiff had violated the anti-trust laws, that fact, coupled with the other allegations of the counterclaim, seems to make out a case sufficient to sustain the amended counterclaim, and to require the plaintiff to reply thereto.
In considering plaintiff's alleged false representations about defendant's equipment, it is undoubtedly true plaintiff has the right to represent that the defendant has infringed plaintiff's patents; yet that allegation and the others in the counter-claim might properly show a conspiracy to violate the anti-trust laws.
As to the allegations that plaintiff has given to automobile dealers prices below cost on lubricating equipment, that alone might not be sufficient to make out a case; but coupled with the other allegations of the counterclaim, a case would be made out, as charged in the amended counterclaim.
The same may be said as to the alleged agreements that plaintiff entered into with reference to its distributors dealing only in the equipment of plaintiff.
With reference to the sixth cause of action in the amended counterclaim alleging unfair competition, the plaintiff contends that no cause of action is stated. This cause of action is stated in paragraphs 112 to 121 of the amended counterclaim, charging that the acts complained of in the other causes of action set forth in the amended counterclaim also constitute unfair competition. The plaintiff contends that such is not the case, because the acts complained of by defendant in the other causes of action stated are lawful. With that view we cannot agree. We are of the opinion that a good cause of action is stated in this sixth count. This view is supported by Emack v. Kane, C.C., 34 F. 46; Maytag Co. v. Meadows Mfg. Co., 7 Cir., 35 F.2d 403.
The plaintiff is also objecting to the sufficiency of the amended counterclaim, in that no special damages are alleged. We are of the opinion that no such allegation is necessary. See Maytag Co. v. Meadows Mfg. Co., 7 Cir., 45 F.2d 299, 302.
Our conclusion is that defendant, in its amended counterclaim of April 1, 1941, has stated a good cause of action, and that plaintiff's motion to dismiss should be denied. Plaintiff will be allowed thirty days in which to reply to this amended counterclaim, should it so desire. An order may be submitted accordingly on notice to opposing counsel.
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