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KECO INDUS. v. BORG-WARNER CORP.
December 17, 1972
Keco Industries, Inc., Plaintiff,
Borg-Warner Corp. and York Division, Borg-Warner Corp., Defendants.
Herman, D. J.
The opinion of the court was delivered by: HERMAN
This matter is before the court on motion of the defendant, Borg-Warner Corporation, for partial judgment on the pleadings.
Keco Industries, Inc. (hereinafter referred to as Keco), seeks recovery from Borg-Warner Corporation, York Division, (hereinafter referred to as York) on grounds that York maliciously interfered with Keco's contract relations with the Government; that York induced a breach of the contract between Keco and the Government; and that York violated the Clayton and Sherman Anti-trust Acts. York has counterclaimed seeking an indebtedness on account between the two parties arising from their contractural relations.
The complaint avers that the court has jurisdiction of the above-captioned matter by virtue of diversity of citizenship between the respective parties, 28 U.S.C. § 1332. Also, the plaintiff presumably attempts to invoke jurisdiction of the court under 28 U.S.C. § 1337 by its averment that "this action is also brought under Sections 15 and 26 of the Act of Congress of October 15, 1914, c. 323, § 4, 38 Stat. 731, being a part of the Act of Congress known as the Clayton Act, and Section 2 of the Act of Congress of July 2, 1890, c. 647, 27 Stat. 209, as amended, being commonly known as the Sherman Act." Apparently this averment was intended to read that the action is brought under Sections 15 and 26 of Title 15, being a part of the Act of Congress of October 15, 1914, c. 323, § 1, 38 Stat. 730 et seq., known as the Clayton Act, and Section 2 of Title 15 of the Act of Congress of July 2, 1890, c. 647, § 2, 26 Stat. 209, being known as the Sherman Act.1
York's motion asks the court to enter partial judgment on the pleadings in favor of York on the ground that "defendant is entitled to partial judgment as a matter of law on the undisputed facts appearing in the pleadings in that the pleadings do not set forth a claim against the Defendant upon which relief can be granted under the antitrust laws of the United States."
The relevant allegations in plaintiff's complaint which incorporates all claims within the context of one court may be summarized as follows:
1. Keco designs, engineers and fabricates air-conditioning and air-handling equipment for special purposes, particularly for use in the ground support and aerospace fields under contracts with the United States Government or with others who are performing work under contract for the Government. These contracts must be performed promptly and efficiently.
2. York Division of Borg-Warner designs, engineers and fabricates compressors and related equipment and enters into contracts for sale of said compressors throughout the United States.
3. The business of both Keco and York is of an interstate nature and character.
5. The contracts on their face provided for the use of Thermo King Compressors Model 2S19M, within the air-conditioning unit. Thermo King compressor units are also specified in bidding on other air-conditioning units.
6. Although the contracts provided otherwise, the Government agreed
that they would substitute or employ compressors designated as Keco Part No. 64277 (hereinafter Keco Compressors) in fabrication of the air conditioners.
7. The Keco Compressor is a York Compressor, sold by York to Keco and modified by Keco so that it is physically ...
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