Niagara of Buffalo, Inc. v. Niagara Manufacturing and Distributing Corporation, Defendant-Respondent

262 F.2d 106, 1 Fed. R. Serv. 2d 34, 1958 U.S. App. LEXIS 5870, 1958 Trade Cas. (CCH) 69,228

Opinion

PER CURIAM.

This is an action under 15 U.S.C.A. § 15 to recover treble damages for alleged violations of the anti-trust laws. Defendant moved under Rule 12(b), Fed. Rules Civ.Proc. 28 U.S.C.A. to dismiss each count of the amended complaint for failure to state facts sufficient to constitute a cause of action, and for failure to state a claim upon which relief can be granted. The motion was granted and the complaint dismissed.

In his opinion, reported in 161 F.Supp. 849, at page 850, the District Judge stated:

“ * * * Preparation of a proper pleading for an anti-trust suit requires a statement of matters and their relation to each other considerably more extensive than in a simple pleading in negligence or on contract.

“* * * the complaint herein might possibly be sufficient in the ordinary commercial case, but it does not allege the acts complained of with sufficient specificity to be a proper complaint in this type of case

This view of the requisites of a complaint in anti-trust cases is incorrect. Nagler v. Admiral Corporation, 2 Cir., 248 F.2d 319. The motion should have been denied.

Judgment reversed and cause remanded.