208 F. 416 | D.N.J. | 1913
It is elementary that a plaintiff in equity must allege with particularity all material (ultimate) facts necessary to establish his right to the relief prayed, and an articulated array of generalities, no matter how well sounding, will not satisfy this requirement. Story's Fq. Pl. § 241; Shipman’s Fq. Pl. p. 520; Wilson v. American Ice Co. (D. C.) 206 Fed. 736.
"59. That complainant has under and pursuant to said agreements aforesaid (only one is specifically named and that with the plaintUt’s assignor and other persons unnamed) employed the same wholly in, about, under, and in connection with said unlawful combination, agreement, and course of*418 business so in restraint of trade, and that by reason of said unfair competition and unlawful monopoly is wrongfully and unlawfully destroying the business of this) defendant, and this defendant is being wrongfully deprived of a large amount of business, and by which the defendant has been and is being damaged in a great amount, the exact amount of such damage or damages so far inflicted is unknown to the defendant, but which, upon information and belief, it alleges is in excess of $50,000, and that the defendant is, by the said action of the said complainant herein, being wrongfully and unlawfully prevented from fairly competing with the complainant, and the public thereby greatly deceived, prejudiced, and damaged.”
Surely if the defendant has such a cause of action as entitles it to redress against an unfair competitor, some overt act of the plaintiff, specifically directed against the defendant or its customers, or which injuriously affects the defendant's business reputation and good will specifically, must be known by it and be capable of precise averment. No such acts, however, are pleaded, and the conclusion is irresistible that the purpose of the pleading was not so> much to outline the specific injury being perpetrated upon the defendant as a separate identity, as that which it in common with others in the same trade was suffering because of the plaintiff's violation of the Anti-Trust Law. For such injury and violence, only the United States, in the exercise of its governmental power and duty to protect the general public, may bring suit. Anti-Trust Act, § 4; Minnesota v. Northern Securities Co., 194 U. S. 48, 24 Sup. Ct. 598, 48 L. Ed. 870. For such lack of definiteness and particularity such paragraph must be struck out.
The subject-matters of all of these paragraphs fall within the condemnation of Terry Steam Turbine Co. v. Sturtevant Co. (D. C.) 204 Fed. 103, and Williams Patent Crusher & Pulverizer Co. v. Kinsey Mfg. Co. (D. C.) 205 Fed. 375, hut the later case of Vacuum Cleaner Co. v. American Rotary Valve Co., 208 Fed. 419, decided by the United States District Court for the Southern District of New York (memorandum filed May 2, 1913), holds that practices which amount to unfair competition may be interposed as a defense under such rule. In the present case a decision of this question for the reasons given is unnecessary. t
All the recited paragraphs, as well as Nos. 28, 29, 30, 32, 34, 35, 36, 37, 45, 48, and 54, repeated by such answer in aid of these alleged defenses in so far as they are thus repeated and relied upon to support them, must be struck out. Prayers 5, 6, and 7, being based on such defenses, must also be struck out.
The motion is granted, with costs.