262 F2d 106 Niagara of Buffalo v. Niagara Manufacturing and Distributing Corporation

262 F.2d 106

NIAGARA OF BUFFALO, Inc., Plaintiff-Appellant,
v.
NIAGARA MANUFACTURING AND DISTRIBUTING CORPORATION, Defendant-Respondent.

No. 100.

Docket 25214.

United States Court of Appeals Second Circuit.

Argued December 2, 1958.

Decided December 31, 1958.

Borins & Snitzer, Buffalo, N. Y., for plaintiff-appellant.

Jaeckle, Fleischmann, Kelly, Swart & Augspurger, Buffalo, N. Y., for defendant-respondent. John B. Walsh, Adelbert Fleischmann and Manly Fleischmann, Buffalo, N. Y., of counsel.

Before SWAN, MEDINA and WATERMAN, Circuit Judges.

PER CURIAM.

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1

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.

2

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

3

"* * * 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.

4

"* * * 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 * * *."

5

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.

6

Judgment reversed and cause remanded.