Opinion and Order
MASTERSON, District Judge.
Early in 1970, MDC Data Centers, Inc. (MDC) leased certain equipment from International Business Machines Corporation (IBM) allegedly upon the latter's representation and warranty that these machines would successfully transmit computer data from remote (franchise) locations to MDC's main office in Cherry Hill, New Jersey, for analysis and then send appropriate information back to the remote location. Upon installation, however, the equipment failed to perform its assigned tasks. On several occasions engineers from IBM visited the Cherry Hill office to examine the new equipment. As a solution to these operational difficulties, IBM recommended that MDC accept the services of their Systems Engineering Department. However, IBM also informed MDC that this assistance would be forthcoming only upon the payment of an additional fee. In its opinion, MDC thought that no additional sum should be demanded because IBM's salesmen had allegedly represented to it that the new equipment could readily handle MDC's demand without any extensive engineering assistance. Unable or unwilling to pay an additional amount, MDC ordered IBM to remove its equipment and then sued IBM for the losses which it incurred in this aborted venture.
In its complaint, MDC sets forth four counts: (1) anti-trust premised upon an illegal tie with computer equipment as the tying product and engineering services as the tied item; (2) breach of contractual warranties; (3) negligent misrepresentation; and (4) fraudulent misrepresentations. Jurisdiction is premised upon a federal question (28 U.S.C. § 1331) and diversity of citizenship (28 U.S.C. § 1332).
Presently before this court is IBM's motion for partial summary judgment under Rule 56, F.R. Civ. P. In this motion, IBM challenges solely the viability of count one, MDC's anti-trust claim. Basically, IBM asserts that even accepting the facts as set forth by MDC in its complaint, as a matter of law, the latter has not established a tie-in arrangement proscribed by the anti-trust laws. For the following reasons, we agree.
Section 1 of the Sherman Act, 15 U.S.C. § 1
forbids unreasonable tie-ins involving goods and services.
See e.g., United States v. Jerrold Electronics Corporation, 187 F. Supp. 545 (E.D. Pa. 1960), aff'd., 365 U.S. 567, 5 L. Ed. 2d 806, 81 S. Ct. 755 (1961) (per curiam). In order to establish such a tie-in arrangement, there must be a tying product or service and a tied product or service as well as a requirement imposed by the seller that the customer accept the less desirable tied item as a condition to obtaining or retaining the desired tying one. See United States v. Loew's, Inc., 371 U.S. 38, 9 L. Ed. 2d 11, 83 S. Ct. 97 (1962); Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 97 L. Ed. 1277, 73 S. Ct. 872 (1953); Int'l Salt Co. v. United States, 332 U.S. 392, 68 S. Ct. 12, 92 L. Ed. 20 (1947). Tie-ins are an object of the anti-trust laws for two reasons; (1) "they may force buyers into giving up the purchase of substitutes for the tied product . . ., and (2) they may destroy the free access of competing supplies of the tied product to the consuming market." 371 U.S. at 45. A tie-in becomes unreasonable when a "substantial amount" of commerce is involved and the seller has "sufficient economic power" because of the "unique and unusual" nature of the tying product to impose "burdensome terms such as a tie-in, with respect to any appreciable number of buyers within the market." Fortner Enterprises v. U.S. Steel, 394 U.S. 495, 504, 22 L. Ed. 2d 495, 89 S. Ct. 1252 (1968). See United States v. Loew's, Inc., supra at 45.
MDC's entire anti-trust claim is contained in two paragraphs of the complaint which read as follows:
"12. Defendant refused, however, to correct the equipment without further additional payments by plaintiff to defendant. Defendant offered to plaintiff for an additional fee its systems engineering services and it was represented by defendant to plaintiff, for the first time after the lease and installation of the equipment, that only with the aid of defendant's systems engineering services could plaintiff expect the system to be operable.