receive a discrimination in price which is prohibited by this section.'
The plaintiffs have alleged the necessary elements of a violation of Section 2(f). Upon the trial of this action, plaintiffs may find discharging their burden of proof a difficult task, but plaintiffs are not required to incorporate in the complaint all the evidence which is necessary to prove their allegations.
The motion of defendants Vim to dismiss the third cause of action is denied.
The Fourth and Fifth Causes of Action Under Sections 1 and 2 of the Sherman Act.
The fourth cause of action incorporates the allegations of the first three causes of action and in addition merely alleges:
'44. Defendants entered into agreements, arrangements, contracts and combinations whereby I.T. & T. granted or attempted to grant Vim and other favored retailers local retail monopolies of its products and thus restrained the trade of other retailers, including Krug's customers, in exchange for which Vim and other favored retailers increased their purchases from I.T. & T. or its predecessor.'
The fifth cause of action is pleaded in the same fashion as the fourth, the only allegation other than those incorporated from earlier causes of action being:
'46. As part of the conspiracy, combination and restraint of trade hereinbefore alleged, defendants attempted to conceal or disguise the foregoing acts of favoritism to Vim and others. It was agreed that the merchandise sold to Vim and other favored retailers would be described or referred to as closed-out, discontinued merchandise or the like, when this was not the case. In fact, said merchandise was of the same grade and quality as other merchandise currently and subsequently sold and delivered by defendant I.T. & T. and its predecessor to Krug and others.'
All the plaintiffs have done in the fourth and fifth causes of action is to make conclusory statements of restraint and monopoly, which even on their face do not necessarily amount to violations of the Sherman Act.
What was recently said in Baim & Blank, Inc., v. Warren-Connelly Company, Inc., D.C.S.D.N.Y.1956, 19 F.R.D. 108, 109, may well be noted here for its pertinency:
'These are motions addressed to a complaint which seeks treble damages and injunctive relief based upon alleged violations of the Robinson-Patman Act * * * and the Sherman Act * * *. This complaint is subject to the same deficiencies which led Judge Weinfeld to dismiss almost similar complaints in Baim & Blank, Inc., v. Admiral Corporation, D.C.S.D.N.Y.1955, 132 F.Supp. 412 and in Baim & Blank, Inc., v. Vim Television & Appliance Stores, Inc., D.C.S.D.N.Y.1955, 139 F.Supp. 378.
'The modern 'notice' theory of pleading is not sufficient when employed in a complaint under the antitrust laws. It is all very well for Professor Moore to state that: "The modern philosophy concerning pleadings is that they do little more than indicate generally the type of litigation that is involved.' (Moore, Federal Practice (2d Ed.) Vol. 2, p. 1607.) This will not do in this type of case. If a complaint contains nothing more than general allegations that defendants have violated various provisions of the antitrust laws combined with a prayer for relief, such a pleading, as I have previously said, 'becomes a springboard from which the parties dive off into an almost bottomless sea of interrogatories, depositions, and pretrial proceedings on collateral issues, most of which may have little relationship to the true issue in the case.' ( New Dyckman Theatre Corp. v. Radio-Keith-Orpheum Corp., D.C.S.D.N.Y.1954, 16 F.R.D. 203, 206.)
'For these reasons, it is not practical in these cases to proceed as in a negligence case or in a simple commercial case. ( Bader v. Zurick General Accident & Liability Ins. Co., D.C.N.Y.1952, 12 F.R.D. 437.) To do so would cause both court and counsel to become bogged down in the endless problems that will arise in pre-trial discovery proceedings.
The complaint should show the relationship of the parties, the specific acts complained of, and the relation of the acts to the damages claimed.
'A Judge who had to pass upon the propriety of interrogatories or on the relevance of questions on depositions, with nothing more to guide him than the present vague complaint, would be left completely at sea.'
The motions of defendants I.T. & T. and Vim to dismiss the fourth and fifth causes of action are granted.
An appropriate order may be submitted.