attempted monopolization has been set forth.
As a background, it is said that the statutory offense of "monopolization" under Section 2 exists when it is shown that the person from whom recovery is sought possesses monopoly power in a relevant geographic and product market together with the intent and purpose to exercise that monopoly power, United States v. Grinnell Corp., 384 U.S. 563, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966); United States v. E.I. Du Pont de Nemours & Co., 351 U.S. 377, 100 L. Ed. 1264, 76 S. Ct. 994 (1956), and within this context the term "monopoly power" has been variously described as the power or ability to fix prices or to exclude competition in the relevant market. United States v. Grinnell Corp., supra.
In contrast to the offense of "monopolization," it is said that in order to claim and prove "attempted monopolization" there must be a "dangerous probability" of a monopoly. Lorain Journal Co. v. United States, 342 U.S. 143, 96 L. Ed. 162, 72 S. Ct. 181 (1951); Buckeye Powder Co. v. E.I. Du Pont de Nemours Powder Co., 248 U.S. 55, 63 L. Ed. 123, 39 S. Ct. 38 (1918), together with overt acts committed in furtherance thereof within a relevant market, Lorain Journal Co. v. United States, with the specific intent of the person charged to achieve the unlawful goal of monopoly power. Times-Picayune Publishers Co. v. United States, 345 U.S. 594, 97 L. Ed. 1277, 73 S. Ct. 872 (1953).
In both instances, i.e., monopolization, or attempted monopolization, the offense may be committed by a single "person" or by "persons" acting in concert with one another by virtue of a combination or conspiracy. If a combination or conspiracy is alleged, and of course later shown, the general intent requisite to the offense of monopolization is conclusively presumed, United States v. Griffith, 334 U.S. 100, 92 L. Ed. 1236, 68 S. Ct. 941 (1948); whereas, in the case of a claim of an individual monopolization this general intent must be shown.
Preliminarily, it should be said that in this case no cause of action has been stated under the "attempted monopolization" provision of Section 2. The complaint fails to aver that York has a "dangerous probability" of achieving a monopoly nor is it averred that York's alleged acts were overt acts conducted with the "specific intent" of achieving a monopoly. Since the complaint is not framed in the language of an alleged "attempted monopolization" nor has the plaintiff Keco so argued in the responses to defendant's motion, the court finds that no claim has been averred under the "attempted monopolization" provision.
With respect to the claim of "monopolization" in violation of Section 2, the court again finds plaintiff's complaint lacking in substance. The word "monopoly" cannot be found within the allegations designated in the complaint. It is not expressly averred that York has "monopolized" any part of the trade or commerce and the court assumes, although not expressly stated in the complaint, that the relevant market within which York's monopolization is to be measured is "made up of compressors of the kind of Thermo-King Model 2S19M and a 'relevant market' made up of air conditioners incorporating them," as was argued to the court in Keco's response to York's motion.
Ignoring those deficiencies, the court fails to perceive how York, alone, for purposes of this motion, can "monopolize" in the relevant market of furnishing air-conditioning and air-handling equipment for special purposes and applications in the ground support and aerospace fields when the allegations fail to delineate the source of York's power, other than by disparagement, to fix prices or exclude competition in the specialized government contract market.
Keco's claim is, in essence, that York, by its disparagement, deliberately attempted to exclude and did exclude Keco from competing with York's good customer. There is no allegation that York has the power to control prices or exclude competition, but only that York has excluded competition in the specialized market.
The Supreme Court, in United States v. E.I. Du Pont de Nemours & Co., 351 U.S. 377, 100 L. Ed. 1264, 76 S. Ct. 994 (1956), addressed the question of the relationship under Section 2 violations of the power to control prices and to exclude competition, and said, at 392:
" Price and competition are so intimately entwined that any discussion of theory must treat them as one. It is inconceivable that price could be controlled without power over competition or vice versa. This approach to the determination of monopoly power is strengthened by this Court's conclusion in prior cases that, when an alleged monopolist has power over price and competition, an intention to monopolize in a proper case may be assumed."
No contention has been made that York, alone, has the power to control prices in the relevant market herein. Nor has York's "power to exclude" competition in the area of governmental procurement contracts been sufficiently delineated by relationship or otherwise.
Keco has alleged no more than that it was excluded from competition by reason of York's disparagement, and disparagement without more, although actionable at common law, is not enough to bring this action within the Sherman Act. Atlanta Brick Co. v. O'Neal, 44 F. Supp. 39 (E.D. Tex. 1942).
Keco has suggested that actionable "reciprocity" as applied to the Sherman Act is involved herein, see, Kintner, The Anatomy of Reciprocity, 56 A.B.A.J. 232-36 (1970), but the court finds no merit in this argument.
For the reasons stated above defendant's motion for a partial judgment on the pleadings will be granted and an appropriate order will be entered, without prejudice.