it from competition with the other theatres in violation of the anti-trust laws. It is further alleged that William Goldman is president and controls the third party corporate defendant.
This complaint states no claim upon which relief can be granted. It has been decided that a corporation may not conspire with itself, i.e., with its officers, agents and employees. Nelson Radio & Supply Co., Inc., v. Motorola, Inc., 5 Cir., 1952, 200 F.2d 911, 914.
These motions will be granted.
VI. Motions To Strike Paragraphs 9 and 10 From The Complaints
Each of the remaining defendants has moved in each action to strike from the complaint paragraphs 9 and 10 upon the grounds that they are irrelevant to any injury allegedly incurred by the plaintiff and are scandalous.
In each complaint these paragraphs allege, in substance, that, as a result of defendants' exclusion of the plaintiff from the presentation of theatrical productions, the defendants have conspired with divers persons to restrain the sale of tickets at regular prices at the ticket offices of their respective theatres in order to oblige prospective patrons to buy tickets from brokers and 'ticket scalpers' at prices which exceed the established theatre prices; further, that the defendants have thus been enabled to charge and have charged higher prices for tickets than they would otherwise have been able to charge had they not enjoyed a monopoly -- all to the detriment of the public and patrons.
In paragraphs 14 and 16 of the complaints plaintiff alleges that it will be unable to obtain legitimate attractions and has suffered specific pecuniary damage. The prayers for relief demand treble damages, injunctions against interference with plaintiff's right to present theatre attractions and against defendants' alleged unlawful refusal to negotiate for such attractions.
The court is authorized by F.R.Civ.P.Rule 12(f) to order stricken from any pleading, upon motion, matter which is redundant, immaterial, impertinent or scandalous. In Slick Airways, Inc., v. American Airlines, Inc., D.C.1954, 15 F.R.D. 175, Judge Forman aptly expressed the philosophy which this court's experience with antitrust actions leads us to believe should control:
'* * * pleadings should not be whittled away where the material averred, while not strictly within a rigid interpretation of the rules, is helpful in outlining the background against which the action is laid, particularly, where those allegations are factual and will not impose hardship upon the adverse party to answer or otherwise prejudice him. It is equally obvious that * * * the injection of issues remote from the claim of the plaintiff can serve to lead into tributaries away from the main stream of litigation frustrating the purpose to reduce it to its simplest terms and avert unnecessary expenditures of large amounts of time, money and effort, usual concomitants of court controversies even when most expeditiously administered.' 15 F.R.D. at pages 177-178.
For the reasons hereinafter stated we conclude that paragraphs 9 and 10 are remote from and immaterial to the claim of the plaintiff and should be stricken.
Treble damage actions are authorized to be commenced by persons injured in their business or property for the damages sustained by them.
A complaint in a private civil antitrust action may not allege a violation of the statute and, ipso facto, claim damages generally. Specific injury suffered by the plaintiff, differing from that sustained by the plaintiff as a member of the public, must be affirmatively alleged.
The gist of the present complaints is that the defendants conspired to deprive the plaintiff of legitimate theatre attractions with resultant special damage to the plaintiff's business and injury to the public. The plaintiff seeks monetary and injunctive relief. It appears to us that paragraphs 9 and 10 allege a wholly different conspiracy without any affirmative allegation of consequent injury to the plaintiff's business. To the contrary the injury alleged is to the public. If such a conspiracy affecting the public interest does exist the party to take appropriate action under the antitrust laws in the public interest is the Attorney General, not the plaintiff. Beegle v. Thomson, 7 Cir., 1943, 138 F.2d 875 precludes the plaintiff's self-appointment as the public's officer to end the alleged ticket selling conspiracy and to punish the alleged conspirators.
In oral argument plaintiff's counsel strongly urged that this conspiracy discouraged people from attending theatres. The complaints contain no such allegation and the contention of counsel is insufficient to show the 'manner, nature, character and extent of the injury sustained' by the plaintiff or specific facts upon which damages might be assessed. Beegle, supra, 138 F.2d at page 881.
The motions to strike will be granted. Counsel will settle and submit orders accordingly.