DONOVAN, District Judge.
Plaintiff commenced action against defendants, seeking an injunction, forfeiture of corporate franchises and damages. At the hearing of plaintiff’s motion for a preliminary injunction defendants moved for summary judgment or that the action be dismissed on the grounds that (1) the Court lacks jurisdiction over the subject matter, and (2) that plaintiff’s complaint does not state a claim upon which relief can be granted.
On account of the importance of the case, the Court permitted the entire matter to be gone into very fully. Twenty-two witnesses were subpoenaed and thirteen of them were sworn and testified. Briefs were filed and oral arguments had.
It may be helpful to summarize the facts pleaded in the complaint and testified to by witnesses. Plaintiff is a corporation operating a large number of stores, vending groceries, meats and related products in nine states. In most states in which it is doing business it operates and is open evenings. In Minneapolis, Minnesota, plaintiff’s policy of evening operations was opposed. Proceedings similar to the instant case were instituted, and as a result serious opposition to plaintiff’s night operations was withdrawn by the local union and the action was discontinued in this Court.
In October, 1952, plaintiff opened a new retail store at Highland Village in the City of St. Paul, Minnesota. Among the persons there employed are eight meat cutters who are members of defendant Union. In keeping with plaintiff’s policy of operation this store was open daily from 9 a.m. to 9 p.m., Sundays and specified holidays excepted. Plaintiff found this type of operation efficient and profitable, permitting sale [631]*631of commodities at economy prices to the consumer. T'he store in question is what is termed a “supermarket”, strategically located in a shopping center adjacent to a large suburban residential area, with spacious free parking facilities.
The defendants, the St. Paul Food Retailers Association, Inc., National Tea Co., Inc., the Hove Food Market Incorporated, Kleins Supermarkets, Inc., Applebaum Food Markets, Inc., and Cut Price Supermarket, operate retail stores in competition with plaintiff. From time to time plaintiff and said defendant employers have negotiated with defendant Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 114 (A.F.L.) and its agents the matter of proposed agreements governing wages, hours of work and working conditions of members of the Union in the employ of plaintiff and defendant employers.
Much of the evidence is undisputed. Defendant employers are in competition with plaintiff. They are bound by an agreement in all important respects identical to that herein sought to be entered into with plaintiff by the Union. During negotiations had in connection therewith, defendant employers were represented. Defendant Hove preferred to be permitted to exercise its own judgment in the matter of night operations. Defendant Klein opposes night operations, as does the Union. Otherwise, the facts are sharply in dispute.
Plaintiff called a witness who was its retained attorney and who, testifying herein, quoted defendant Union’s agent as saying that the maneuvering leading to the instant case looked as though the Union “was carrying the hall” for the employers. On two occasions an employer (not a defendant) wrote defendant Union on the business stationery of defendant Hove, urging that the Union induce plaintiff to conform to the uniform contract governing night operations in the City of St. Paul, and saying that if the Union failed in this the writer would breach its contract. The writer turned out to be a member of a partnership which, by concession and independent contract, was operating the meat department at defendant Hove’s in St. Paul. One of said letters is reproduced in our marginal notes.1 No defendant would admit going as far as the witness E. V. Ruedy did in writing said letters. The foregoing will suffice as a statement of the facts for present purposes.
Plaintiff contends that its operations herein have been limited to intrastate commerce, and it makes no claim that federal law has been violated by defendants. It further contends that the pleadings and evidence adduced in support of the relief prayed for establish the existence of combinations, agreements and understandings between and among the Union and the other defendants which tend to fix and limit hours of operation of retail stores of plaintiff’s class, all of which amounts to a conspiracy in restraint of trade, in violation of Section 623.01, Minnesota Statutes Annotated.2
[632]*632Defendants, and each of them, deny the existence of a conspiracy, and contend the strike and picketing at plaintiff’s retail store in the City of St. Paul arises out of a labor dispute between plaintiff’s employees who are members of defendant Union and their employer, the plaintiff herein, and defendants further contend that plaintiff and said employees were at all times herein engaged in interstate commerce. Defendants further contend that the subject matter of the action commenced by plaintiff is governed by the Clayton Act and the NorrisLaGuardia Act,3 and hence the Court is without jurisdiction.
Plaintiff opposes defendants’ motions for summary judgment and for a dismissal, contending that the only matter before the Court is its motion for a preliminary injunction. The motion for a dismissal was [633]*633made by defendant Union when the instant motion for an injunction was called for hearing by the Court. The motion to dismiss was later joined in by the remaining defendants. The motion for summary judgment was made by defendants at the conclusion of the testimony. The complaint is the only pleading before the Court.4 Answers have not been interposed.
The Court will first consider the defendants’ motions for summary judgment or a dismissal. Obviously, if either motion were granted the plaintiff’s motion for a preliminary injunction would become moot.
In my opinion the complaint states a cause of action, and the principal action must abide the joinder of issues; by answer. If it proceeds to trial, the result will be contingent upon the sufficiency of the evidence. The present status of the case does not permit the granting of summary judgment or dismissal of the principal action.
Proof submitted and arguments for and against the issuance of an injunction consumed seven days. In submitting plaintiff’s motion for injunctive relief its able counsel limited the issue for determination to the existence of a conspiracy alleged and as illustrated in excerpts from the complaint quoted in the margin, and proof in support thereof. In the words of plaintiff’s counsel:
“The issue of law involved at this stage of the proceedings is whether such combinations and agreements are unlawful and subject to restraint, both as to the business firms and the labor union involved, and whether a work stoppage and picketing by a labor union for such purpose may be restrained.” At the outset, it may be said that I am of the opinion that the formally executed agreements between the Union and employer-defendants are lawful. The only remaining question has to do with plaintiff’s claim of conspiracy.
It is elementary, of course, that the plaintiff has the burden of proving conspiracy.5
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DONOVAN, District Judge.
Plaintiff commenced action against defendants, seeking an injunction, forfeiture of corporate franchises and damages. At the hearing of plaintiff’s motion for a preliminary injunction defendants moved for summary judgment or that the action be dismissed on the grounds that (1) the Court lacks jurisdiction over the subject matter, and (2) that plaintiff’s complaint does not state a claim upon which relief can be granted.
On account of the importance of the case, the Court permitted the entire matter to be gone into very fully. Twenty-two witnesses were subpoenaed and thirteen of them were sworn and testified. Briefs were filed and oral arguments had.
It may be helpful to summarize the facts pleaded in the complaint and testified to by witnesses. Plaintiff is a corporation operating a large number of stores, vending groceries, meats and related products in nine states. In most states in which it is doing business it operates and is open evenings. In Minneapolis, Minnesota, plaintiff’s policy of evening operations was opposed. Proceedings similar to the instant case were instituted, and as a result serious opposition to plaintiff’s night operations was withdrawn by the local union and the action was discontinued in this Court.
In October, 1952, plaintiff opened a new retail store at Highland Village in the City of St. Paul, Minnesota. Among the persons there employed are eight meat cutters who are members of defendant Union. In keeping with plaintiff’s policy of operation this store was open daily from 9 a.m. to 9 p.m., Sundays and specified holidays excepted. Plaintiff found this type of operation efficient and profitable, permitting sale [631]*631of commodities at economy prices to the consumer. T'he store in question is what is termed a “supermarket”, strategically located in a shopping center adjacent to a large suburban residential area, with spacious free parking facilities.
The defendants, the St. Paul Food Retailers Association, Inc., National Tea Co., Inc., the Hove Food Market Incorporated, Kleins Supermarkets, Inc., Applebaum Food Markets, Inc., and Cut Price Supermarket, operate retail stores in competition with plaintiff. From time to time plaintiff and said defendant employers have negotiated with defendant Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 114 (A.F.L.) and its agents the matter of proposed agreements governing wages, hours of work and working conditions of members of the Union in the employ of plaintiff and defendant employers.
Much of the evidence is undisputed. Defendant employers are in competition with plaintiff. They are bound by an agreement in all important respects identical to that herein sought to be entered into with plaintiff by the Union. During negotiations had in connection therewith, defendant employers were represented. Defendant Hove preferred to be permitted to exercise its own judgment in the matter of night operations. Defendant Klein opposes night operations, as does the Union. Otherwise, the facts are sharply in dispute.
Plaintiff called a witness who was its retained attorney and who, testifying herein, quoted defendant Union’s agent as saying that the maneuvering leading to the instant case looked as though the Union “was carrying the hall” for the employers. On two occasions an employer (not a defendant) wrote defendant Union on the business stationery of defendant Hove, urging that the Union induce plaintiff to conform to the uniform contract governing night operations in the City of St. Paul, and saying that if the Union failed in this the writer would breach its contract. The writer turned out to be a member of a partnership which, by concession and independent contract, was operating the meat department at defendant Hove’s in St. Paul. One of said letters is reproduced in our marginal notes.1 No defendant would admit going as far as the witness E. V. Ruedy did in writing said letters. The foregoing will suffice as a statement of the facts for present purposes.
Plaintiff contends that its operations herein have been limited to intrastate commerce, and it makes no claim that federal law has been violated by defendants. It further contends that the pleadings and evidence adduced in support of the relief prayed for establish the existence of combinations, agreements and understandings between and among the Union and the other defendants which tend to fix and limit hours of operation of retail stores of plaintiff’s class, all of which amounts to a conspiracy in restraint of trade, in violation of Section 623.01, Minnesota Statutes Annotated.2
[632]*632Defendants, and each of them, deny the existence of a conspiracy, and contend the strike and picketing at plaintiff’s retail store in the City of St. Paul arises out of a labor dispute between plaintiff’s employees who are members of defendant Union and their employer, the plaintiff herein, and defendants further contend that plaintiff and said employees were at all times herein engaged in interstate commerce. Defendants further contend that the subject matter of the action commenced by plaintiff is governed by the Clayton Act and the NorrisLaGuardia Act,3 and hence the Court is without jurisdiction.
Plaintiff opposes defendants’ motions for summary judgment and for a dismissal, contending that the only matter before the Court is its motion for a preliminary injunction. The motion for a dismissal was [633]*633made by defendant Union when the instant motion for an injunction was called for hearing by the Court. The motion to dismiss was later joined in by the remaining defendants. The motion for summary judgment was made by defendants at the conclusion of the testimony. The complaint is the only pleading before the Court.4 Answers have not been interposed.
The Court will first consider the defendants’ motions for summary judgment or a dismissal. Obviously, if either motion were granted the plaintiff’s motion for a preliminary injunction would become moot.
In my opinion the complaint states a cause of action, and the principal action must abide the joinder of issues; by answer. If it proceeds to trial, the result will be contingent upon the sufficiency of the evidence. The present status of the case does not permit the granting of summary judgment or dismissal of the principal action.
Proof submitted and arguments for and against the issuance of an injunction consumed seven days. In submitting plaintiff’s motion for injunctive relief its able counsel limited the issue for determination to the existence of a conspiracy alleged and as illustrated in excerpts from the complaint quoted in the margin, and proof in support thereof. In the words of plaintiff’s counsel:
“The issue of law involved at this stage of the proceedings is whether such combinations and agreements are unlawful and subject to restraint, both as to the business firms and the labor union involved, and whether a work stoppage and picketing by a labor union for such purpose may be restrained.” At the outset, it may be said that I am of the opinion that the formally executed agreements between the Union and employer-defendants are lawful. The only remaining question has to do with plaintiff’s claim of conspiracy.
It is elementary, of course, that the plaintiff has the burden of proving conspiracy.5 True, “Conspirators do not make minutes of their machinations, progress and objectives”6, yet the proof proffered in this type of hearing is required to es[634]*634tablish a prima facie case.7 Suspicion alone is insufficient, and the injunction should issue only in -cases clearly demanding it.8 If the issue were limited to employers alone, a labor dispute would obviously not be involved. 9 Has plaintiff carried the burden of proof required of it? Let us consider possible phases of conspiracy.
Respectable authority requires injunctive relief where the record discloses a combination between a Union and business groups to restrain competition.10 Again, if the veiled threats contained in the letter quoted, supra, were joined in by defendant Union and defendant employers to such an extent as to exemplify their unity of purpose and of action in violation of law, then conspiracy among the defendants in restraint of trade might well be considered established. But defendants herein did not subscribe to said letter, nor did any of them admit authorship of any motives that a Court could point out as amounting to a combination or conspiracy in violation of any of the statutes pertinent to this proceeding. What transpired cannot be spelled out to be anything other than an effort on the part of defendant Union to precipitate and bring to fruition by lawful means a labor dispute 'between its employee members and their employer. Adopting plaintiff’s theory of complaint and trial, I cannot see any combination in the instant case, except as it affected their services to their employer, and this does no violence to the quoted state statute and was not considered an illegal restraint of trade at common law.11 Of course, if a labor dispute alone were involved, the fact that plaintiff’s business was solely intrastate would not be helpful, as Congress occupies the field of labor disputes between employer and employee to the exclusion of state regulation.12
The record of the instant case does not sustain the burden of proof required to permit the granting of the injunction sought by plaintiff.13 It is a cardinal rule of equity that a preliminary injunction should not issue in a doubtful case. Whether conspiracy exists in fact can best be determined when all the evidence, both as to damages and the basis therefor, is before the Court.14 Any strike and its accompanying picketing may cause irreparable damage, even though the strike be lawful. Immunity from the injunctive process exists so long as the defendant Union acts in its self-interest, and does not combine with defendant nonlabor groups.15 The defendant Union, of course,' must not combine with any or all of the remaining defendants to do anything prohibited by law.16
I am of the opinion that there was no combination or agreement amounting to a conspiracy, on the record and proof submitted by plaintiff in support of its motion for a preliminary injunction; hence the injunction prayed for must be denied.
An exception is allowed to all the parties.