Opinion
Action by Reliable Machine Works, Inc., against Furtex Machine Corp. of America, for infringement of a patent for equitable relief, and an accounting. The defendant filed a counterclaim alleging violations by plaintiff of the anti-trust laws and seeking treble damages. Plaintiff moved to strike certain paragraphs of defendant's counterclaim, for a summary judgment dismissing the counterclaim and in event that any portion of counterclaim was not stricken, for separate trials of plaintiff's action and the counterclaim and for an order placing plaintiff's action on the nonjury calendar. The District Court, S. H. Kaufman, J., held that two of the paragraphs of the counterclaim were defective in that they failed to allege any specific overt acts by plaintiff and those paragraphs would be stricken out but the rest of the counterclaim presented issues of fact as result of which plaintiff's motion for summary judgment on the counterclaim would be denied and that motions by plaintiff for separate trials of action and counterclaim and for assignment of case to nonjury calendar would be denied.
Order in accordance with opinion.
James & Franklin, New York City, Harold James, New York City, of counsel, for plaintiff.
Harry Price, New York City, for defendant.
S. H. KAUFMAN, District Judge.
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.