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June 29, 1959

Albert E. ROBINSON, Plaintiff,
STANLEY HOME PRODUCTS, INC., and William J. Gahm, d/b/a Plura Plastics, Defendants

The opinion of the court was delivered by: WORTENDYKE

Defendant, William J. Gahm, doing business as Plura Plastics (Plura) has moved for an order striking the amended complaint for prolixity and non-conformity with Rule 8(a)(2) and (e)(1), 28 U.S.C., for failure to state a claim against movant upon which relief can be granted, and for lack of jurisdiction over the subject matter; Rule 12(b)(6) and (1).

The first cause of action alleged is grounded upon §§ 13(c) and (f), and 15 of Title 15 of the United States Code Annotated. It is also alleged that there is diversity of citizenship between plaintiff (Robinson), a resident of Massachusetts, and Plura, a resident of New Jersey, but that the co-defendant Stanley Home Products, Inc. (Stanley) is a corporation of Massachusetts.

 It is further alleged that Stanley and Plura do business in interstate commerce, and that Robinson had agreed to act as exclusive New England representative, upon a commission basis, for the sale of Plura's products in that territory. Those products included collapsible plastic cups manufactured by Plura in New Jersey and shipped in interstate commerce. Stanley was allegedly one of the customers which Robinson had secured for Plura's products. After the initial order and reorder which Robinson had secured from Stanley, the latter made an offer directly to Plura to purchase large quantities of the cups at a substantially reduced unit price. The complaint charges that this price reduction 'could be accomplished only by diverting to Stanley the commission otherwise payable to plaintiff,' and that, upon its acceptance of Stanley's offer, 'Plura forthwith terminated the plaintiff's services as New England representative.'

 It is further alleged that the reduced price at which Stanley offered to purchase Plura's products was unreasonably low and not justified by any savings in manufacture, packaging or shipment. Robinson charges that Stanley desired to eliminate his services so that it might purchase at the substantially reduced price, thereby obtaining for itself the amounts of the commissions which would otherwise have been paid to Robinson. The foregoing acts of the defendants are alleged to be violations of subsections (c) and (f) of § 13 of Title 15 of the United States Code Annotated. *fn1" Subdivision (a) of § 13 of that title provides, in part: '(a) * * * That nothing contained in sections 12, 13, 14-21, and 22-27 of this title shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade * * *.'

 Incorporating by reference all of the preceding allegations of the amended complaint, Robinson, in paragraph 7, charges Plura with having breached its contract to pay commissions due to Robinson on sales to Stanley, for which he seeks recovery. The next succeeding paragraph, number 8, charges Stanley and Plura with having conspired to deprive Robinson of his rightful commissions as manufacturer's representative for Plura, and to divert those commissions to Stanley. In the concluding paragraph, number 9, the amended complaint charges Stanley with having induced Plura to breach the commission contract with Robinson. Robinson seeks treble damages from both defendants, and demands a jury trial.

 Plura's presently pending motion poses the following questions:

 (1) Does the amended complaint state a cause of action under 15 U.S.C.A. § 13?

 (2) Do the allegations of the amended complaint disclose a cause or causes of action upon which relief can be granted to Robinson against Plura?

 (3) Do the allegations of the amended complaint disclose jurisdiction in this Court over the subject matter of the cause or causes of action therein set forth?

 It is obvious at the outset that in the last three numbered paragraphs of the amended complaint, summarized above, Robinson has rather inartistically endeavored to allege separate causes of action respectively, viz.:

 (1) For damages for Plura's breach of commission contract with the plaintiff;

 (2) For damages for the alleged conspiracy between Stanley and Plura to deprive Robinson of his commissions; and

 (3) For damages for Stanley's inducement of Plura to breach the latter's commission contract with Robinson. Each of the three foregoing causes of action is expressly asserted 'under applicable State law.'

 The jurisdiction of this Court with respect to these three causes of action depends upon a showing of diversity of citizenship and the involvement of the statutory minimum monetary amount. 28 U.S.C. § 1332. While Robinson and Plura are citizens of Massachusetts and New Jersey respectively, the co-defendant, Stanley, is a corporation of Massachusetts. Because the plaintiff and one of the defendants are citizens of the same State, a vital element of diversity is lacking. Walmac Co. v. Isaacs, 1 Cir., 1955, 220 F.2d 108. Diversity of citizenship alone, however, without a claim or showing that the minimum requisite monetary amount is involved, would be insufficient to confer jurisdiction. 28 U.S.C. § 1332(a); McCoy v. Siler, 3 Cir., 1953, 205 F.2d 498, certiorari denied 346 U.S. 872, 74 S. Ct. 120, 98 L. Ed. 380. Nowhere in the amended complaint does the amount in controversy appear. There is nothing to show (1) that the amount of the commissions of which Robinson claims to have been deprived, or of the damages which he claims to have suffered by reason of the breach of his commission contract, exceeded or even equalled the sum of $ 10,000, exclusive of interest and costs. The attempt to incorporate by reference into each ...

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