Carbonic Gas Co. of America, Inc. v. Pure Carbonic Co. of America

4 F. Supp. 992, 1933 U.S. Dist. LEXIS 1406

• Court: District Court, S.D. New York
• Decided: October 28, 1933
• Status: Published

Opinion

WOOLSEY, District Judge.

Motion granted, with leave to plaintiff to amend second cause of aetion within twenty days from entry of order hereon, and if not so amended within said time, the second cause of aetion is to be finally dismissed.

I. The locus standi of plaintiff in these two actions to maintain any action against the defendants under the Clayton Act, §§ 2 and 3, title 15 U. S. C. §§ 13 and 14 (15 USCA §§ 13, 14), must be based on damages suffered by the plaintiff, title 15 U. S. C. § 15 (15 USCA § 15). Cf. Jack v. Armour & Co. (C. C. A.) 291 F. 741, 745; Gerli v. Silk Association of America et al. (D. C.) 36 F.(2d) 959, 960. See, also, Keogh v. Chicago & N. W. R. Co., 260 U. S. 156, 163, 43 S. Ct. 47, 67 L. Ed. 183.

A plaintiff may not, therefore, assume the role of a deus ex machina for other parties and found a cause of action in its own favor on discrimination in violation of the Clayton Act as to such other parties.

II. Until the plaintiff, in each of these causes by proper sworn allegations shows a damage to itself (or himself) by the alleged acts of the defendants, the other interesting questions raised by this motion remain moot.

Settle order on notice.