Plaintiff has stated sufficient ultimate facts to notify defendants of the nature of the action, and the fraudulent acts charged."
The Circuit Court of Appeals of this Circuit, in Continental Collieries v. Shober, 130 F.2d 631, expressed the same view. Circuit Judge Jones said (130 F.2d at page 635):
"* * * Under Rule S(a) (2) of the Federal Rules a plaintiff 'sets forth a claim for relief' when he makes 'a short and plain statement of the claim showing that the pleader is entitled to relief'. See Sierocinski v. E. I. DuPont De Nemours & Co., 3 Cir., 103 F.2d 843. Technicalities are no longer of their former importance, and a short statement which fairly gives notice of the nature of the claim is a sufficient compliance with the requirements of the rules."
Our conclusion on this phase of the case is that the complaint does state a claim on which relief can be granted.
Defendants also urge that this suit is prematurely brought, because defendants do not have, or control, sufficient stock-interest in plaintiff-company to control its Board of Directors. There is no merit in this contention. Section 7 of the Clayton Act forbids the acquisition by one corporation of the stock of another "where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition", or where the effect of such acquisition may be "to restrain such commerce in any section or community", or where the effect of such acquisition may "tend to create a monopoly in any line of commerce."
The complaint, in paragraphs 11, 13, and 14, alleges the restraining effect of the stock ownership of defendants and the conspiracy between the defendants, and avers that the National Supply Company is the victim thereof.
We had a similar situation in Hartford-Empire Company v. Glenshaw Glass Company, 47 F.Supp. 711, 717:
"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 [Material] Co., 273 U.S. 359, 47 S. Ct. 400, 71 L. Ed. 684, supports this view."
Defendants also contend that plaintiffs are guilty of laches. We do not see any merit in this contention. We cannot see how plaintiffs can, at the same time, be premature in bringing this action, and guilty of laches in not bringing it sooner. Whether this suit was brought too soon or too late is obviously a question of fact to be determined by the court on the trial.
Circuit Judge Woolley, in Farmers' Bank of McSherrystown v. Halsey, Stuart & Co., 3 Cir., 21 F.2d 818, 822, well stated the rule to be applied when laches is pleaded as a defense:
"* * * Proof that the plaintiff's delay gave it some advantage or subjected the defendant to some prejudice is necessary, for laches, unlike limitation, is not a mere matter of time. Galliher v. cadwell, 145 U.S. 368, 372, 12 S. Ct. 873, 874, 36 L. Ed. 738; Southern Pacific [Co.] v. Bogert, 250 U.S. 483, 39 S. Ct. 533, 63 L. Ed. 1099. Therefore this defense when reached is for the trial court, to be disposed of according as the testimony is disputed or undisputed."
The bill of complaint discloses no basis for a determintion of this question. There is nothing in the complaint that would even indicate that defendants have been harmed by the failure of plaintiffs to bring this suit at an earlier date.
As to the allegation that the matters are moot, there is no merit in this contention. There is no war-time Act of Congress which makes this action moot. The Acts of Congress and executive orders now in existence refer only to prosecutions of actions by the United States.
Then, too, there is no merit in the contention that there is no special damage suffered by, or threatening the plaintiff. Private injunctive relief is permitted under Section 16 of the Clayton Act, 15 U.S.C.A., § 26, "against threatened loss or damage by a violation of the antitrust laws, * * *, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, * * *." Such averment we find in paragraph 22 of the amended bill of complaint.
As to the plaintiff, Morgan B. Schiller, we are of the opinion that the bill of complaint should be dismissed. He alleges damages to his voting rights, if defendants are permitted to vote their stock. He has shown no special damages to himself which would qualify him to sue. He cannot sue under Section 16 of the Clayton Act for an injury to the plaintiff-company.
The motion to dismiss will be granted as to the plaintiff Schiller, and denied as to plaintiff, National Supply Company. An order may be submitted accordingly on notice to opposing counsel.
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