11 F.R.D. 525 | S.D.N.Y. | 1951
Plaintiff moves pursuant to (1), Fed. Rules Civ.Proc. Rule 12(b) (6), 28 U.S. C.A., to strike paragraphs 8 and 9 of defendant’s counterclaim; (2) Rule 56(b) for a summary judgment dismissing the counterclaim; and, in the event that any portion of the counterclaim is not stricken, for separate trials of plaintiff’s action and the counterclaim and for an order placing plaintiff’s action on the non-jury calendar.
Plaintiff charges defendant with infringement of a patent on a machine used for the reconditioning of fur and fur garments, and seeks equitable relief against further infringement, and an accounting for general damages.
Defendant in its answer denies the commission of any acts of infringement and, by way. of a counterclaim, alleges violations by plaintiff of' certain sections of the anti-trust laws, 15 U.S.C.A. §§ 1, 2, 3, and 14, for which it seeks treble damages.
Paragraphs 8 and 9 of the counterclaim are defective in that they fail to allege any specific overt acts by plaintiff, but merely paraphrase the language of the statute. To state a cause of action under the anti-trust laws, specific facts must be stated showing that the statutes have been contravened and that as a consequence injury has resulted to the party complaining. Merrimac Hat Corporation v. Crown Overall Mfg. Co., D.C., S.D.N.Y. 1950, 91 F.Supp. 49; Brunswick-Balke-Collender Co. v. American Bowling & Billiard Corporation, D.C., S.D.N.Y.1942, 2 F.R.D. 487. The motion to strike paragraphs 8 and 9 is granted, with leave to amend.
Notwithstanding the striking out of paragraphs 8 and 9 of said complaint, paragraphs 10, 11 and 12 present issues of fact as a result of which plaintiff’s motion for a summary judgment on the counterclaim must be denied. A party has the right to a trial where the slightest doubt exists as to the facts in issue. Peckham v. Ronrico Corporation, 1 Cir., 1948, 171 F.2d 653, 657.
The motions by plaintiff for separate trials of the action and the counterclaim, and for assignment of the case to the non-jury calendar are denied.
Settle order on notice. ,
