is mooted insofar as any of the non-parties referred to therein have been made parties. Objection No. 4 may properly be made the subject of negotiations on the issue of burdensomeness.
The plaintiffs' Motion to Compel Answers to Interrogatories is granted as to Interrogatories 1(g-1), 2, 3, 4, 7, 8, 9, 10 and 11. The defendants shall file full and complete and responsive answers within thirty days of the date of this Order, or the Court will impose sanctions.
The interrogatories in question go to the heart of the case. After consideration of a similar motion to compel the Court has already ordered them to be answered. The defendants, however, filed patently insufficient answers, including objections unsupported by adequate explanations therefor, and unsupportable attempts to rely on Rule 33(c), F.R.Civ.P. These interrogatories must be answered and this litigation shall proceed, and the Court will take all appropriate steps to enforce timely compliance with this Order.
Interrogatory No. 5 stands on a slightly different footing, since it is really a request for production of documents. The request is massive, but the documents sought are relevant to the subject matter of this lawsuit. Rule 26(b)(1), F.R.Civ.P.
Nevertheless, the request as framed appears burdensome. Without prejudice to the plaintiffs' right to renew their request for items not granted, the Court orders the defendants to produce the documents requested in sub-paragraphs a, b, c, d, e, f, g, j, m, o, q, r, § of Interrogatory 5 within sixty (60) days of the date of this Order.
The plaintiffs' Motion to Strike Various Affirmative Defenses is denied. The Court has not been briefed, and will not speculate, as to whether a finding that the alleged maritime contracts did not exist would deprive it of subject matter jurisdiction, assuming (without deciding) incomplete diversity of citizenship. However, the presence of defenses disclaiming diversity do not prejudice the plaintiffs, and in the event that admiralty jurisdiction is found not to exist, such defenses will obviously be relevant.
The plaintiffs' Motion to Dismiss the First and Second Counterclaims is granted.
The First Counterclaim alleges that the plaintiffs' agreement to join in this suit is a combination or conspiracy in restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. For such a claim to lie, the defendants must allege that the plaintiffs' action is a "sham", intended not to pursue legitimate remedies in this Court, but instead unlawfully to harm the defendants' businesses. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S. Ct. 609, 30 L. Ed. 2d 642 (1972). An example of such a claim might be where a group of plaintiffs jointly begin a commercial action simply to be in a position to dismiss the suit in exchange for the defendant's agreeing to enter into a price-fixing conspiracy with them.
The instant counterclaim, however, does not allege that the plaintiffs' primary purpose in bringing this litigation was to destroy the defendants' businesses. California Motor Transport, supra, establishes a Scienter requirement for the type of antitrust violation alleged here. In that case the Supreme Court balanced the plaintiffs' First Amendment right of access to the courts (and the chilling effect that potential antitrust liability might have on that right) against the purposes of the Sherman Act, and held that the First Amendment does not protect court actions when "the real Intent of the conspirators was not to invoke the processes of the administrative agencies and courts, but to discourage (the legitimate competitive activities of their competitors). Such an intent would make the conspiracy "an attempt to interfere with the business relationships of a competitor and the application of the Sherman Act would be justified.' Eastern Railroad Conference v. Noerr Motor Freight, 365 U.S. (127) at 144 (, 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464)." California Motor Transport, supra., 404 U.S. at 518, 92 S. Ct. at 615 (Stewart, J., concurring; the qualification was apparently adopted by the majority, 404 U.S. at 515, 92 S. Ct. 609) (emphasis in original).
The counterclaim at issue is very carefully and precisely drafted. The defendants have Not alleged that the plaintiffs' primary (or "real") intent in filing suit was to injure the defendants' businesses. The counterclaim does, however, carefully allege that the "primary purpose" of the defendants and third-party defendants, Semack, Kavula and Castelbuono in procuring suit was to "destroy the business" of the defendants. The pivotal paragraph is Paragraph 195, where it is alleged that the plaintiffs "knew or had reason to know" of the primary purpose of Semack, Kavula and Castelbuono. Nowhere is it alleged that the Plaintiffs intended to destroy the defendants' businesses. Significantly, there is no allegation that the plaintiffs and defendants are competitors, nor that the plaintiffs had any reason to wish to harm the defendants beyond the harm inflicted by recovery of a judgment.
As a rule, conspiracy must be pleaded with specificity. See, e.g., Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972). Such specificity is especially important where fundamental First Amendment rights may be chilled by the allegation. This Court has grave doubts about the wisdom of recognizing any but the most serious and carefully articulated claims of anticompetitive behavior in a counterclaim such as this. Virtually any two co-plaintiffs in a commercial lawsuit are vulnerable to the charge that they "conspired and agreed" to "harm the defendant's business" by bringing suit in the first place. Without a requirement that a party allege (in good faith compliance with Rule 11, F.R.Civ.P.) a Primary intent to harm another's business, nearly every two-plaintiff commercial lawsuit could become an antitrust suit a result that could not have been contemplated by Congress in enacting the Sherman Act.
The counterclaim must also be dismissed on an alternative ground. The plaintiffs assert that the defendants and they are not competitors, and the counterclaim itself does not allege that the parties are competitors. In their Answer to the Motion to Dismiss, the defendants implicitly admit as much. Hence, their claim does not properly invoke the "sham" exception first recognized in Eastern Railroad Presidents' Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961):
"There may be situations in which a . . . campaign, ostensibly directed toward influencing governmental action is a mere sham to cover what is actually nothing more than an attempt to Interfere directly with the business relationships of a Competitor and the application of the Sherman Act would be justified." (emphasis added)