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.
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.