287 F2d 524 McElhenney Co Mac v. Western Auto Supply Company

287 F.2d 524

McELHENNEY CO., Inc., W. F. Snipes, J. T. Snipes, George
Toole, Mac Toole, R. P. Swofford, Charles L.
Gasque and Harry Clinkscales, Appellants,
v.
WESTERN AUTO SUPPLY COMPANY, Appellee.

No. 8121.

United States Court of Appeals Fourth Circuit.

Argued Oct. 6, 1960.
Decided Nov. 2, 1960.

Chester D. Ward, Jr., Spartanburg, S.C., for appellants.

James C. Wilson, Kansas City, Mo., and Alfred F. Burgess, Greenville, S.C., (Louis L. Poplinger, Kansas City, Mo., and Wyche, Burgess & Wyche, Greenville, S.C., on the brief) for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit judges.

PER CURIAM.

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1

When this treble damage action for violation of the anti-trust law came here in an earlier appeal we remanded the case to afford the plaintiffs an opportunity to apply to the District Court for leave to amend their complaint. 4 Cir., 269 F.2d 332. An amended complaint was submitted by the plaintiffs to that court together with an appropriate motion for leave to file the same. The defendant opposed the plaintiffs' motion and the court entered an order denying it and dismissing the action. This second appeal followed.

2

The hearing before us took a wide range, in which many questions of antitrust law were debated by counsel, but we find it unnecessary to rule upon them in the abstract in advance of trial. We have concluded that the amended complaint tendered by the plaintiffs stated a cause of action under section 3 of the Clayton Act, 15 U.S.C.A. 14, entitling them to a trial, and that leave to file the amended complaint should have been granted. We do not, however, preclude resort by the defendant to customary procedures of pretrial practice to obtain additional pertinent information with respect to the particulars of the unlawful acts and agreements charged in the complaint and the relationship between the participants therein. Nor do we express any opinion as to the legal sufficiency of the allegations of specific facts contained in the original but omitted from the amended complaint.

3

Reversed and remanded for further proceedings.