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NATIONAL BOWL-O-MAT CORP. v. BRUNSWICK CORP.

February 21, 1967

National Bowl-O-Mat Corp. et al., Plaintiff,
v.
Brunswick Corp., Defendant and Counter-Claimant and Daniel Lieblich and Reuben Dankoff, Counter-Defendants


Wortendyke, District Judge.


The opinion of the court was delivered by: WORTENDYKE

WORTENDYKE, District Judge:

In this treble damage action under 15 U.S.C. ยงยง 15 and 26, the defendant has counterclaimed against the plaintiffs and the counter-defendants in three counts. The first two counts of the Counterclaim invoke the jurisdiction of this Court under the same Federal statutory sections (1 and 2 of Title 15) as are relied upon by the plaintiffs to support jurisdiction over the Complaint. The Third Count of the Counterclaim alleges that this Court has jurisdiction "* * * pendent to its jurisdiction of plaintiffs' Complaint and of the First and Second Counts herein [in the Counterclaim], for the reason that it arises out of the same acts and among the same parties and out of injuries and threatened injuries to the same business, and should be determined in the same proceeding in order to do complete justice among the parties." The Third Count alleges that the plaintiffs and counter-defendants have individually, and by combination and conspiracy among themselves and with others, "* * * willfully, wantonly and maliciously injured the business of counterclaimant in the sale of bowling equipment and supplies and have attempted willfully, wantonly and maliciously to destroy counterclaimant's business in the operation of bowling centers and have willfully, wantonly and maliciously injured counterclaimant's business reputation and good will." The same Count alleges that to accomplish the injuries therein complained of, the plaintiffs and counter-defendants made statements to the effect set forth in Paragraph 13 of the First Count of the Counterclaim, incorporated by reference into paragraph 13 of the Third Count of the Counterclaim. These injurious acts are alleged to have consisted of conduct by the plaintiffs and counter-defendants in furtherance of attempts to monopolize, and of their combination and conspiracy to monopolize in violation of Section 2 of the Sherman Act. The allegations are as follows:

 
"In furtherance of their attempts to monopolize and their combination and conspiracy to monopolize, as aforesaid, counter-defendants have:
 
(a) made and published false statements to other bowling center operators to the effect that the operation by counterclaimant of bowling centers is an unlawful attempt by it to monopolize the bowling center business;
 
(b) made and published false statements to other bowling center operators to the effect that counterclaimant has exercised in areas where it operates bowling centers power to fix the prices for bowling lineage for other bowling centers in such areas;
 
(c) made and published false statements to other bowling center operators to the effect that counterclaimant subsidizes bowling centers operated by it with the purpose of driving out of business competing operators of bowling centers;
 
(d) made and published to other bowling center proprietors false statements to the effect that counterclaimant attempted to cause the counter-defendants which are subsidiaries of Bowl-O-Mat to default on their obligations to counterclaimant by granting them less favorable credit terms than granted to their competitors, with the purpose of taking over and operating such Bowl-O-Mat centers;
 
(e) made and published false statements to other bowling center proprietors to the effect that counterclaimant deceitfully, untruthfully and in bad faith has represented that it is willing to sell the equipment and operation of the bowling centers which it operates to responsible buyers and on reasonable terms;
 
(f) made and published false statements to other bowling center operators that counterclaimant has not attempted in good faith to require the bowling centers which it operates to observe the principles of fair competition which it has formulated and published as the principles laid down by it for the operation of such centers;
 
(g) caused and sought to cause Bowling Proprietors Association of America and various local organizations affiliated with it, by making to them the false statements alleged in the foregoing sub-paragraph (a), to adopt resolutions condemning Counter-claimant's operation of bowling centers as unfair and damaging competition to other bowling center operators;
 
(h) urged other bowling center operators to boycott counterclaimant as a source of bowling equipment and supplies;
 
(i) instituted the action against counterclaimant set forth in plaintiffs' Complaint herein without good or sufficient grounds for doing so, has circulated among other bowling center operators copies of said Complaint and has publicized its said suit widely among other bowling center operators, both orally and in writing.
 
(j) solicited and urged Bowling Proprietors Association of America and various of its affiliated local organizations to help defray the expenses of prosecuting the claims against counterclaimant which are alleged in the complaint of the plaintiffs in this cause and, in the course of such solicitation and inducements, made the false statements alleged in the foregoing subparagraph (a) and further statements to the effect that counterclaimant's operation of bowling centers is a menace to the business of all other bowling center operators and that, if the plaintiffs herein should prevail upon the claims alleged in their complaint, other bowling center operators throughout the country might be in a position to recover large amounts of damages from counterclaimant on the basis of similar charges,
 
all with the willful, wanton and malicious purpose and intent of creating suspicion, resentment and ill will against counterclaimant in the minds of other bowling center operators, who are counterclaimant's market for the bowling equipment and supplies which it manufactures and sells, to the end that such other operators will not purchase bowling equipment and supplies from counterclaimant and thereby ...

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