the alleged antitrust violations on the part of Russell Trucking and Medusa. His discharge was in retaliation for refusing to participate in their unlawful conduct and for threatening to alert law enforcement authorities to their actions.
Whether or not Plaintiff, on the basis of Defendants' conduct, has in fact stated a claim under the antitrust laws, is another matter. There is nothing in the record to indicate whether Defendants' conduct had any effect on competition in interstate commerce. In other words, there is no evidence that the alleged conspiracy tended to, or actually did, restrain trade so as to violate § 1 of the Sherman Act. See Sitkin Smelting & Refining Co. v. FMC Corp., 575 F.2d 440 (3d Cir. 1978), cert. denied, 439 U.S. 866, 99 S. Ct. 191, 58 L. Ed. 2d 176 (1978). Lack of such facts could result in a dismissal of Plaintiff's antitrust claim for failure to state a cause of action for which relief can be granted. See Larry R. George Sales Co. v. Cool Attic Corp., 587 F.2d 266 (5th Cir. 1979). We believe that this question can be most appropriately resolved if the Motions to Dismiss are converted into Motions for Summary Judgment by the filing of affidavits, if the parties so desire. Therefore, counsel for all parties will be permitted to submit affidavits on the question of what effect, if any, Defendants' practice of "riding heavy" or "overloading" trucks for the 15 to 20 mile distance from Wampum, Pennsylvania to the Ohio Border, had on competition in interstate commerce.
IV. MOTIONS TO STRIKE
Finally, both Defendants have moved to strike the "Preliminary Statement" in Plaintiff's Complaint because it is not in the form of numbered paragraphs, each limited to a single set of circumstances, as Required by Rule 10(b) of the Federal Rules of Civil Procedure.
Although, the "Preliminary Statement" may constitute a technical violation of Rule 10(b), the Court will allow that portion of the Complaint to stand since it was sufficiently clear so as to enable each Defendant to effectively formulate a response. Therefore, the only amendment required, if Plaintiff so desires, pertains to the tort of wrongful discharge since it was not specifically pleaded as a cause of action in the Complaint.
Medusa's Motion to Strike also disputes Plaintiff's demand for a jury trial with regard to the breach of contract claims. In light of our decision on these claims, this matter is clearly moot.
In light of the foregoing, the following Order is hereby entered:
And now, this 30th day of June, 1982,
1. Defendants' Motions to Dismiss the § 301 action against Russell Trucking are GRANTED. Plaintiff is given leave of 30 days until July 30, 1982, within which to amend his Complaint, if desired, so as to specifically plead an action for wrongful discharge against Russell Trucking. Defendant Russell Trucking shall be given leave of 20 days, until August 19, 1982, within which to respond.
2. Defendants' Motions to Dismiss the action for breach of contract against Medusa are GRANTED. If, however, Plaintiff wishes to plead an action against Medusa for wrongful discharge, he must so amend his Complaint within the time granted above. If Plaintiff does plead such an action against Medusa, the determination as to joint employment shall be made by the finder of fact at trial. Medusa's Motion to Dismiss the action against it for tortious interference with contractual relations is DENIED.
3. Defendants' Motions to Dismiss the antitrust claim for lack of standing are DENIED. Counsel for all parties are given leave of 30 days within which to file affidavits, if they desire, on the question of whether Plaintiff has stated a claim under the antitrust laws.
4. Defendants' Motions to Strike are DENIED.