to be in the plaintiff. In our opinion, this defense cannot be raised by a motion to strike or dismiss, but must be raised by direct pleading. True it is that paragraph 158 of defendant's counterclaim II (The Anti-Trust claim) avers that plaintiff instituted a suit against defendant, and that as a result of that litigation defendant was forced and compelled to execute the new license-agreement with plaintiff on December 1, 1932, covering the Howard Feeders; and that paragraph 161 of defendant's counterclaim II further avers that when the final decree was entered in favor of plaintiff against defendant in the suit described in paragraph 158 of Counterclaim II, defendant was prevented and restrained from using its Howard Feeders for the manufacture of fruit jars. However, that does not amount to the raising of the issue of res adjudicata, which is an affirmative defense under Rule 8(c), and therefore cannot be raised by a motion to strike or dismiss. If the plaintiff desires to raise that question, it must do so by reply to defendant's answer and counterclaim.
The plaintiff contends that the license-agreements sued upon are entirely legal and valid, and that therefore there is no merit in defendant's averment that this court should refuse to lend its aid to the enforcement of a bargain which is either inherently illegal, or the performance of which involves violation of the anti-trust statutes. As this case must come to trial on the issue of whether or not plaintiff was involved in an illegal combination in restraint of trade, we prefer to delay until the final hearing the determination of the question of whether or not the contracts sued upon by plaintiff were a part of that combination, or only collateral thereto and therefore enforceable in spite of such illegal combination.
We now turn to the sufficiency of the allegations of the Counterclaim II, which charges the plaintiff and the cross-defendants with a violation of Sections 1 and 2 of the Sherman Act, by conspiring to monopolize and restrain trade and commerce in the glassware industry. The sufficiency of this charge is not attacked by plaintiff. It urges that defendant's allegations of injury show that no damage resulted proximately from any breach by plaintiff of the anti-trust laws. With this contention we cannot agree. Paragraphs 57, 150 to 170 of the answer and counterclaim aver that defendant has been prevented and restrained from carrrying on, promoting and extending its lawful business; that as a direct and proximate consequence of the unlawful activities of the plaintiff, it has been directly injured in its property and business, as it has been required to pay exorbitant and oppressive royalties to plaintiff; and that it has been undertaking or continuing the manufacture and sale of various lines of glassware, including fruit jars, milk bottles, prescription and proprietary-medicine bottles, and other glasswares which would have resulted in substantial profit to defendant. We held similar allegations to be sufficient in an anti-trust case: Stewart-Warner Corporation v. Staley, D.C., 42 F.Supp. 140. See also opinion of Judge Gibson of this District, in United Exhibitors v. Twentieth Century Fox Film D. Corporation, 31 F.Supp. 316.
The Supreme Court also has held that general allegations that a conspiracy in restraint of trade directly injured the business and property of the complaining party, are sufficient. See Stevens Co. v. Foster & Kleiser Co., 311 U.S. 255, 261, 61 S. Ct. 210, 85 L. Ed. 173.
We therefore conclude that the counterclaim on its face shows a good cause of action against the plaintiff.
Plaintiff urges that if there was a monopoly in restraint of trade in this case, the defendant was in pari delicto thereto, and cannot recover either damages under the anti-trust laws, or rents and royalties heretofore paid under the license-agreements. We cannot see the defendant in that category. Under the facts pleaded in the answer and counterclaim, the defendant was a victim, rather than a participant in the alleged conspiracy. The case of Eastman Kodak Company v. Southern Photo Co., 273 U.S. 359, 47 S. Ct. 400, 71 L.Ed 684, supports this view.
Plaintiff contends that a claim for damages under the Clayton Act, 38 Stat. 730, cannot be asserted in a counterclaim under Rule 13(b) of the Rules of Civil Procedure. We are unable to agree with this contention, and have heretofore held that it may be so asserted. See our opinion, Stewart-Warner Corporation v. Universal Lubricating Systems, D.C., 29 F.Supp. 846.
We therefore conclude that plaintiff's motions to strike the answer and counterclaim should be denied. The plaintiff will be allowed twenty days from the date of signing the order denying its motion to strike, to reply to defendant's answer and counterclaim.
Plaintiff has asked that if motion 9 as to paragraphs 2(a), 14 and 15 of the answer, and paragraphs 27 and 32 inclusive of the counterclaim, and paragraphs 150 to 170 inclusive of the counterclaim; and motions 26 and 29 with respect to paragraphs 150 to 170 inclusive of the counterclaim, be denied, the defendant be required, either by amended pleading or by bill of particulars, more particularly to specify the charges therein named. On due consideration of these paragraphs, we are of the opinion that they are sufficiently specific; and plaintiff's motion for a more specific statement thereof will be denied.
An order in accordance with this opinion may be submitted on notice to opposing counsel.
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