Act claim by showing that he divided the geographical market among his retailing representatives so as to encourage successful competition with retailers representing other brands. Under White Motors, supra, a defendant must gather and present evidence on the nature of the geographical and product markets and the competitive balances struck within those markets. The statute of limitations, however, has run in this case and that statute is an expression of Congress' intent that no party be required to collect and prepare such defense material unless they are given timely notice before records are lost and witnesses' memories are dimmed. Such notice was not given to the defendant in this case. Ferdinand E. Suehle v. Markem Machine Co., 38 F.R.D. 69 (E.D. Pa. 1965).
We note that plaintiff's failure to make a timely effort to introduce an antitrust claim is made more culpable by the fact that the court pointed out the possible existence of antitrust violations on at least one prior occasion. See pp. 2-3 Transcript of Pretrial Conference before Judge Edward Dumbauld, October 27, 1971.
Turning to the question of whether or not, at this stage of the proceedings, this court should allow plaintiff leave to amend so as to allege that the heavy duty truck franchise was actually reduced to written form, we must again answer in the negative but with a qualification. One of the primary purposes of the summary judgment mechanism is to pierce the bare pleadings in order to examine and assess the factual proofs to see if a trial is necessary. See Committee Note of 1963 to Subdivision (e) of F.R.C.P. Rule 56, 6 Moore's Federal Practice para. 56.01. When plaintiff responded to defendant's motion for summary judgment by offering several purchase orders as contract memoranda which would render the agreement provable under the Statute of Frauds and under the Dealers' Day Act, the pleadings had been pierced and the evidence and the proofs had been marshalled in support of the parties' respective positions. With the case sitting in this posture, plaintiff's proposed amendment so as to allege the bare and unsupported contention that the contract was actually written,
would circumvent Rule 56 and would therefore defeat its purpose.
Nonetheless, Rule 15(a) of the Federal Rules of Civil Procedure insists that leave to amend "shall be freely given when justice so requires" and the cases interpret this rule to allow amendment unless the objecting party can show actual prejudice, and even in that case courts may permit the amendment and grant a continuance if such a continuance would enable the objecting party to prepare for and meet the new issue. Scott v. Baltimore & O.R. Co. (C.A. 3d 1945), 151 F.2d 61, Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962).
Therefore, this court must allow the plaintiff to amend if within a reasonable time he comes forward with substantial and convincing evidence to the effect that the oral heavy duty truck contract was actually reduced to written form. Otherwise, leave to amend on this issue will be denied. This court will reserve its decision on defendant's summary judgment motion pending the outcome in this matter. Glade Mountain Corp. v. R.F.C. (D.N.J. 1952), 104 F. Supp. 695.
And now, this 8th day of August, 1972, it is hereby ordered that:
The motion for leave to amend the complaint to allege violations of §§ 1 and 2 of the Sherman Act is denied.
The plaintiff is granted fifteen (15) days from the date of entry of this order to offer substantial and convincing proof that in January or February of 1965, plaintiff and defendant entered into a heavy duty truck franchise and that "said contract was reduced to writing by defendant, but not signed by plaintiff."
Upon receipt of such evidence or the expiration of the submission period of fifteen (15) days, this court will take appropriate action on the balance of plaintiff's motion to amend his complaint.