INDUSTRIAL BUILDING MATERIALS, INC., a corporation, Plaintiff, v. INTERCHEMICAL CORPORATION, a corporation, and Martin-Marietta Corporation, a corporation, Defendants, 278 F. Supp. 938

DECISION ELIMINATING ISSUES, GRANTING DISMISSAL AND ORDERING

SUMMARY JUDGMENT. HAUK, District Judge. This is an action to recover treble damages for injuries allegedly sustained by reason of violations of the antitrust laws by defendants. Jurisdiction is vested in this Court by

Section 4 of the Clayton Act, Act of October 15, 1914, Ch. 323, § 4, 38 Stat. 731, 15 U.S.C. § 15. The Complaint was filed on March 18, 1964 in the Northern Division of the Southern District of California, and summons was issued thereon. That filing was in error, and on motion of plaintiff’s counsel, the case was transferred to this Division of the Court on April 1, 1964.

The Complaint alleged in general terms that defendants Martin-Marietta Corporation and Interchemical Corporation had contracted, combined and conspired among themselves and with others unreasonably to restrain interstate trade and commerce in sealants, sealing compounds and other allied products in the United States and particularly in California, Arizona and Nevada, had in fact unreasonably restrained such trade and commerce, had attempted to monopolize such trade and commerce, had conspired to monopolize and had succeeded in monopolizing such trade and commerce, all in alleged violation of Sections 1 and 2 of the Sherman Act, Act of July 2, 1890, Ch. 647, §§ 1 and 2, 26 Stat. 209 as amended, 15 U.S.C. §§ 1 and 2.

Objects and purposes of the alleged conspiracy were described in general terms, and acts in furtherance of the alleged attempt to monopolize, conspiracy to monopolize and monopolization were similarly generally described. Plaintiff was alleged to have been a distributor of the products of the Presstite Division, a manufacturer of sealants, sealing compounds and allied products, which had been owned by defendant Martin-Marietta Corporation until July 1, 1963 and was owned by defendant Interchemical Corporation thereafter.

Plaintiff was alleged to have been injured by reason of such alleged violations of the antitrust laws in that its business of distributing Presstite products was destroyed. Damages aggregating $530,000 (trebled: $1,590,000) were claimed. By a second count, the Complaint alleged that defendants had violated

section 2 of the Clayton Act, as amended by the Robinson-Patman Act, Act of October 15, 1914, Ch. 323, § 2, 38 Stat. 730; amended June 19, 1936, Ch. 592, § 1, 49 Stat. 1526, 15 U.S.C. § 13(a), by discriminating in price between different purchasers of commodities (sealants, sealing compounds and allied products) of like grade and quality, etc. (generally following the language of the statute). Such conduct of defendants was alleged to have caused injury to plaintiff’s business, apparently the same injury as that mentioned in the first count, and damages of $530,000 (trebled: $1,590,000) were claimed.

In accordance with the current trend in complaints in cases of this kind, the complaint described the allegedly unlawful conduct of defendants only in terms of “ultimate facts”. No specific acts, occurrences or events were described or identified; no persons other than defendants and plaintiff were identified; no particular sales were singled out as being unlawful. In short, although it was satisfactory as an opening pleading, the Complaint gave no clue at all as to the particular acts and conduct of defendants which the “ultimate facts” alleged in the Complaint were intended to describe.

Defendant Interchemical promptly served and filed interrogatories to plaintiff inquiring in detail about the acts, occurrences, events, persons, agreements, etc. to which the various averments of the Complaint were directed. Plaintiff made no real attempt to answer any of the interrogatories directed to the alleged unlawful conduct, responding instead to each of such interrogatories with a formula “answer” which stated that, in the absence of discovery, plaintiff was not prepared to formulate a trial plan and formulate its evidence, and referred defendants back to the complaint.

Of course, plaintiff’s response was simply a refusal to answer the interrogatories, in complete disregard of the Rules, and Judge Byrne, to whom the case was then assigned, treated it as such. He was sharply critical of plaintiff’s conduct (e. g. Transcript, June 15, 1964 p. 7), described the purported answers as “insolent” and “inherently improbable” (Id. at 12) and ordered plaintiff to answer those interrogatories “fully and fairly, with no further evasion” (Id. at 16, Order of June 18, 1964).

Plaintiff’s further answers to interrogatories continued in the non-responsive, evasive pattern of the original answers although the formula approach was abandoned, in complete disregard for both the Rules and the Court’s Order. Judge Byrne, however, viewed these further answers charitably, regarding them as an admission that plaintiff then had no information responsive to the interrogatories.

Taking the practical approach that proper answers directly responsive to the interrogatories, which expressly admitted that plaintiff had no information, would not advance the case, he denied Interehemical’s motion for further answers. By an amended Complaint, dated July 16, 1964, plaintiff essentially restated its original Complaint, increasing its claimed damages to $830,000 (trebled: $2,490,000). On motion of Martin-Marietta, two portions of the Amended Complaint were stricken as irrelevant.

Defendants answered, admitting certain facts about the respective businesses of the parties, the ownership of the Presstite Division, and the relationships between the parties, and denying the allegations respecting violations of the law and injury to plaintiff. Fairly extensive discovery by all parties followed, without further intervention by the Court, the parties successfully resolving their differences by stipulation.

On April 5, 1966, apparently pursuant to discussions between the parties respecting procedures for defining issues for trial, plaintiff served (and filed on April 6) a “Statement of Contentions”. Although that document was fairly explicit regarding the course of dealings between plaintiff and defendants, it continued to charge defendants with unlawful conduct in the most sweeping terms, without disclosing the particular acts, occurrences, events, parties, etc. upon which such charges were based.

Interchemical then propounded a second set of interrogatories to plaintiff, filed April 27, 1966, which inquired in detail about the facts supporting the various claims of misconduct by defendants made in the Amended Complaint and the Statement of Contentions. Plaintiff’s time to answer those interrogatories was extended by a series of stipulations, successively, to May 31, 1966, June 15, 1966, July 1, 1966, and August 5, 1966. On August 15, 1966, the parties appeared before this Court for preliminary pretrial conference, the case having been transferred from Judge Byrne via Judge Whelan to Judge Hauk.

Plaintiff was then 10 days in default with respect to its answers to interrogatories, following expiration of the last preceding extension. At that conference, the Court, after consulting with counsel for all parties, fixed a

schedule for further proceedings which, among other things, ordered plaintiff to answer Interchemical’s interrogatories by September 15, 1966 and at the same time to serve and file a statement of contentions and description of documentary materials and oral testimony to be offered at the trial (Order of August 26, 1966).

On October 6, 1966, when plaintiff was about three weeks in default under the foregoing order, at the request of counsel for plaintiff, and with defendants’ consent the Court continued all of the dates in the aforesaid order approximately four weeks, extending plaintiff’s time to answer interrogatories, etc. to October 10, 1966. On October 20, when plaintiff was 10 days in default, and pursuant to stipulation dated October 11, when plaintiff was in default, the Court continued all of the dates in said order by approximately five more weeks, extending plaintiff’s time as aforesaid to November 14, 1966.

On November 15, 1966, one day late, plaintiff mailed to defendants a first installment of its response to Inter-chemical’s interrogatories, and on November 22, 1966, eight days late, it mailed the remainder. Apparently plaintiff regarded the response to Interchemical’s interrogatories as being equivalent to the statement of contents and description of documentary evidence and oral testimony proposed to be offered at the trial which the Court had ordered plaintiff to serve and file by its Orders of August 26, October 6 and October 20, 1966, for it filed nothing further.

Plaintiff’s paper was entitled “Plaintiff’s Answers to Interrogatories of Defendant Interchemical Corporation”, and this was fortunate, for otherwise it could not have been identified as such. It was not responsive to a single one of the interrogatories, and it did not purport to be responsive or to comply with the Rules applicable to answers to interrogatories.

In lied of answering the interrogatories separately as required by Fed.R.Civ.P. 33, plaintiff submitted a two volume Narrative and four appendices, in ten volumes, which it claimed “portray the full mosaic of the case” (Narrative, p. 8, line 11) and “relate all of the evidence which plaintiff will utilize at the trial of this case” (Id. at p. 10, lines 14-15). As might be expected, Interchemical moved promptly for proper answers and sanctions, taking the position that proper answers were essential to the identification and elimination of false issues and the adequate framing of issues to be tried.

As indicated above, plaintiff’s purported answers to interrogatories were clearly and wholly improper under the Rules. There was no question but that, under the Rules, Interchemical was entitled to have its interrogatories answered. Nevertheless, when the matter came on for hearing (December 12, 1966), the Court expressed its own view that as a practical matter plaintiff’s Narrative and supporting documents might prove to be as satisfactory as proper answers to interrogatories for the identification and elimination of false issues and the definition of issues to be tried.

The Court suggested that, in lieu of insisting on proper answers to its interrogatories, Interchemical consider a motion for

summary judgment based on the Narrative, etc., perhaps supplemented by requests to admit or further interrogatories addressed to the Narrative, etc., if needed, (e. g., Transcript, December 12, 1966, pp. 19-22). Counsel for plaintiff then proposed (Id. at p. 31, lines 2-18): “That this [the Narrative and supporting Appendices submitted in response to the interrogatories] is a statement of our case, that he [counsel for Interchemical] file a motion directed to limiting the issues, as specified in this fashion — move to eliminate under

Section 1 of the Sherman Act contract as an unreasonable restraint of trade, combination as an unreasonable restraint of trade, conspiracy as an unreasonable restraint of trade. Under

Section 2, monopoly itself, then conspiracy to monopolize, and then attempt to monopolize. And I will endeavor to forthrightly meet each one of those points. “Where I haven’t got a case and I am sure I haven’t, I will frankly admit so. If I think I have got something to hang my hat on, I will try to point it out very carefully. “I think we can resolve the whole thing this way.” This proposal of plaintiff was accepted by the parties and the Court, and a

schedule to implement it was fixed. That schedule, embodied in the Order of January 4, 1967, required defendants to file their motion by January 16, 1967, required plaintiff to file its response by February 13, 1967, and required defendants to reply by March 13, 1967. On January 13, 1967, defendants served and filed their Motion to Eliminate Issues, which stated 30 possible issues, some with several sub-parts, suggested by the Amended Complaint or the Narrative.

On March 1, 1967, two weeks late, plaintiff served its Preliminary Response to the motion, admitting that five of the possible issues could be eliminated, but stating simply that it made all the rest of the claims mentioned in the Motion.

On March 17, 1967, when plaintiff was more than a month in default, the Court, being advised that matters beyond the control of counsel for plaintiff had prevented counsel from filing the response to defendants’ motion ordered to be made by the Order of January 4, 1967, made an order requiring plaintiff to respond by April 15, 1967, requiring defendants to reply by May 15, 1967, fixing May 22, 1967 for the hearing, and admonishing counsel that the Court did not expect to modify the schedule.

On April 18, 1967, 3 days late, plaintiff served and filed a document entitled “Plaintiff’s Supplemental Response (and Factual Basis in Support Thereof) to Defendants’ Motion to Eliminate Issues” (Supplemental Response). Although plaintiff’s papers may have complied with the literal terms of the Court’s order (“file such response or responses as it deems advisable”), the two papers taken together did not even resemble the performance which plaintiff promised when it suggested the procedure.

Plaintiff was forthright enough as to the five issues it admitted should be eliminated, but as to the rest, it wholly failed to state the facts to support its claims or admit the issues should go out. On May 15, 1967, defendants served and filed their Memorandum in Support of Motion to Eliminate Issues, as well as three extensive exhibits which supplied copies and summaries of documents to which plaintiff had referred and which summarized data appearing on invoices which plaintiff had cited.

At the hearing on May 22, 1967, the Court indicated its general disposition to grant defendants’ motion in most respects because plaintiff had failed to show that any genuine issues existed for trial, i. e., plaintiff had failed to show a reasonable possibility that it could prove a prima facie case as to those issues, even assuming that all the documents it cited and all the testimony to which it referred were admitted in evidence. (Transcript, May 22, 1967, pp. 3-6, p. 12, lines 18-21.) When invited to argue, counsel for plaintiff quoted at length from deposition testimony to which no reference had been made in any of plaintiff’s earlier papers (Id. at pp. 15-18), referred to documents which had not been mentioned previously (Id. at p. 27, lines 11-12), and claimed a misunderstanding as to the showing the Court expected plaintiff to make to support its case (Id. at p. 27, lines 8-11; p. 28, lines 13-17, 21-25; p. 29, lines 7-18; p. 36, lines 11-14).

The Court thereupon gave plaintiff a further chance to show that there was some reason to believe that it could prove a case with respect to the issues defendants had moved to eliminate, and the chance was given in a fair manner on entirely clear and unmistakable terms: “THE COURT: I think this. I will say it again.

Regardless of any misunderstanding, I hope there is no misunderstanding now. “My understanding was that there would be a motion in which the issues to be eliminated would be set forth by the defendants, and then there would be a filing by the plaintiff to set forth all the evidence, all the pegs upon which the plaintiff could hang their hat or hats, with respect to each one of those issues.

And that then the court would look at it and say, well, there is not enough there to support that issue, out goes that issue; there is not enough to support that issue, out it goes; there is enough for this issue, it will stay in the case. “That, apparently, wasn’t the understanding of Mr. Jansen and Mr. Painter. “But it is this time. This is the last round. As far as I am concerned, Mr. Jansen, if you don’t do it this time, I will throw the issues out and let you go up on appeal. “MR. JANSEN: What counsel is talking about is not the plaintiff.

Plaintiff has the evidence— “THE COURT: You haven’t submitted it in the form I want it. Mr. Jansen, either you do it or I will throw the case out, let’s get it clear. I am at that point. “MR. JANSEN: All right. “THE COURT: If you are not going to do it, say so now and I will throw it out right now. “MR. JANSEN: No. I am prepared— “THE COURT: What are you prepared to do ? “MR.

JANSEN: I am prepared to take every item of evidence we have got, point it out in a memorandum, every single item of deposition, if I have to recopy them all, in order to bring it to your Honor’s attention I will do it, and I will put it together so there will not be any mistake or misunderstanding as to the evidence, the testimony.

And I will also try to allude to the inferences that can be drawn from that evidence.” (Id. p. 58 line 2 — p. 59, line 18) “THE COURT: ****** “I will give the plaintiff another period here within which to come up with specific summarizations of the evidence that the plaintiff has and intends to produce with respect to each one of these 30 issues that are still in issue. The first three are out, as I understand it, because plaintiff has already indicated now in his supplemental or in his preliminary response and supplemental response, that they are no longer issues in the ease. That is, issues 1, 2 and 3.

And I think issues 10 and 11. As to the remaining issues, I want to see what evidence the plaintiff has or plaintiffs have with respect to specific references to that evidence, where it can be found, in documents or depositions, or any other materials that are available. As to any issue we haven’t got anything on, I will throw the issue out.” (Id. p. 61, line 15 — p. 62, line 5.) The Court’s Order Continuing Hearing and Fixing

Schedule for Further Presentations, made June 1, 1967 and filed June 5, 1967, settled pursuant to Local Rule 7(

a) without objection by plaintiff, was equally explicit as to what was expected of plaintiff: “2. On or before July 1, 1967, plaintiff shall file with the Court and serve on defendants a Second Supplemental Response to defendants’ Motion to Eliminate Issues. Such Second Supplemental Response shall address itself, separately, to each of the issues designated in defendants’ Motion to Eliminate Issues, except the issues numbered 1, 2, 3, 10 and 11, heretofore eliminated by admission, and as to each such issue, separately, plaintifff shall either (

a) admit that it cannot prove such a claim, or (

b) make the showing in support thereof hereinafter described. If plaintiff intends to make any claim which is not adequately described in defendants’ Motion to Eliminate Issues, plaintiff’s Second Supplemental Response shall also state separately every such claim and make the showing hereinafter described with respect to it. Separately as to each claim which plaintiff intends to assert, whether described in defendants’ motion or stated by plaintiff, plaintiff’s Second Supplemental Response shall: “(

a) specify with particularity all of the evidence which plaintiff has to support such claim, including all testimony, exhibits and documentary material; “(

b) state the facts in detail which plaintiff contends such evidence would prove; and “(

c) state the legal theory, with supporting authorities, which would justify a claim by plaintiff based on such facts and proof. Failure to furnish the foregoing information fully and completely with respect to any claim shall constitute an admission by plaintiff that it cannot prove such claim and abandons such claim.

Plaintiff shall furnish with or as part of its Second Supplemental Response copies of all documents to which reference is made therein and which were not included in Exhibit I to Interchemical Corporation’s Memorandum in Support of Motion to Eliminate Issues.” (Order, June 1, 1967, p. 3, line 23 to p. 4, line 26) On July 6, 1967, 5 days late, plaintiff served by mail a document entitled “Oral Testimony and Documentary Evidence Supporting Plaintiff’s Claim of Violations of the Antitrust Laws” (hereinafter referred to as “OTDE”).

That document, although it encompassed 159 cap pages, bore absolutely no resemblance to the document ordered to be filed. It did not address itself to any of the issues framed in defendants’ motion to eliminate issues, and it did not frame any other issue. It did not set forth with particularity or otherwise all of the evidence which plaintiff has as to any claim; quite the contrary, it twice stated that “of course” it does not include all the evidence (page 158). It did not state the facts which the disjointed quotations from depositions and documents of which it was composed purport to prove.

It did not state the legal theory which would justify a claim by plaintiff based on such facts and proof. In short, the filing of that document by plaintiff was no less than an intentional refusal to comply with the order of the Court. On July 14, 1967, defendants moved to dismiss the action, pursuant to Fed.R.C. P. 41(b), on the grounds (

a) that plaintiff had failed to comply with the order of the Court, and (

b) that, in view of the express terms of the Order of June 1, 1967, plaintiff had abandoned all claims, and the action should be dismissed for failure to prosecute. Neither in its response to defendants’ motion nor at the hearing thereon, July 31, 1967, did plaintiff offer any excuse for its failure to comply with the Court’s order. It offered no apology for its conduct. It did not even see fit to request a further opportunity to comply.

Quite the contrary, in its written Response to Defendants’ Motion to Dismiss, served by mail July 26, 1967, 5 days after the expiration of the time prescribed by Local Rule 3(f) (1), plaintiff stated (at page 5, lines 5-14): “In setting up its oral testimony and documentary evidence plaintiff had two courses open to it.

One, to take defendants’ so called issues and separately as to each set forth the oral testimony and documentary evidence supporting each item. * * * Or plaintiff could as it did set out the oral testimony and documentary evidence under general categories so that it might readily be applied to each of the so called issues.” That is, of course, simply a statement that plaintiff had the choice of complying with the Court’s order, or of not complying, and it intentionally chose not to comply.

Similarly, at the hearing, after the Court had indicated a disposition to grant the defendants’ motion to dismiss, plaintiff’s counsel refused to offer any argument, saying only “Your Honor, if that is your Honor’s feeling, I don’t think there is any point in spending a lot of time discussing it.” (Transcript, July 31, 1967, p. 11, lines 1-3.) With the case in this posture, the Court has reluctantly concluded that defendants’ motion should be granted, and the case, the complaint and each and every cause of action and claim for relief therein contained should be dismissed with prejudice pursuant to Rule 41(b).

The Court clearly has the power to dismiss for failure to prosecute or to comply with an order of the Court, both by the express provisions of Rule 41(

b) and as part of its inherent powers. That power should, and indeed must, be exercised in appropriate situations to protect the integrity of the Court and its orders. Link v. Wabash R.R., 370 U.S. 626, 629, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734, 737 (1962); Fitzsimmons v. Gilpin, 368 F.2d 561, 562 (9th Cir. 1966); Agnew v. Moody, 330 F.2d 868, 870-871 (9th Cir. 1964), cert. denied, 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70 (1964); O’Brien v. Sinatra, 315 F.2d 637, 641, 642 (9th Cir. 1963); Hicks v. Bekins Moving & Storage Co., 115 F.2d 406, 408, 409 (9th Cir. 1940); Marshall v. Southern Farm Bureau Cas.

Co., 353 F.2d 737 (5th Cir. 1965), aff’g 36 F.R.D. 186, 189 (W.D.La.1964), cert. denied, 384 U.S. 910, 86 S.Ct. 1352, 16 L.Ed.2d 363 (1966); Deep South Oil Co. of Tex. v. Metropolitan Life Ins. Co., 310 F.2d 933, 934 (2d Cir. 1962); Janousek v. Wells, 303 F.2d 118, 112, 113 (8th Cir. 1962); Maddox v. Shroyer, 112 U.S.App.D.C. 318, 302 F.2d 903, 904, cert. denied, 371 U.S. 825, 83 S.Ct. 45, 9 L.Ed.2d 64 (1962); Sandee Mfg. Co. v. Rohm & Haas Co., 298 F.2d 41, 42, 43 (7th Cir. 1962); Package Mach. Co. v. Hayssen Mfg. Co., 266 F.2d 56, 57 (7th Cir. 1959), aff’g 164 F.Supp. 904, 911-912 (E.D.Wisc.1958); Thompson v.

Johnson, 102 U.S.App.D.C. 307, 253 F.2d 43 (1958); Societe Internationale Pour Participations Industrielles et Commerciales S.A. v. Brownell, 96 U.S.App.D.C. 232, 225 F.2d 532, 539-540 (1954), aff’g and modifying, Internationale Pour Participations Industrielles et Commerciales S.A. v. McGranery, 111 F.Supp. 435, 447 (D.D.C.1953), cert. denied, 350 U.S. 937, 76 S.Ct. 302, 100 L.Ed. 818 (1956); Blake v. De Vilbiss Co., 118 F.2d 346, 347 (6th Cir. 1941); Perovich v. Pipe Linings, Inc., 63-278-MP (C.D.Cal. May 25, 1967); Shakespeare v. Wilson, 40 F.R.D. 500, 505, 506 (S.D.Cal.1966); Martin v.

Hunt, 29 F.R.D. 14, 16 (D.Mass.1961); Weiner v. City & County of Philadelphia, 184 F.Supp. 795, 796 (E.D.Pa.1960); Dalrymple v. Pittsburgh Cons. Coal Co., 24 F.R.D. 260, 262 (W.D.Pa.1959); United States ex rel. Shinn v. State of Tennessee, 74 F.Supp. 635, 637 (E.D.Tenn.1947). Cf. Commonwealth Edison Co. v. Allis-Chalmers, 245 F.Supp. 889, 900-901 (N.D.Ill.1965). The Court is fully aware that dismissal of a case is a drastic remedy which by its nature cannot be appropriately applied to every case of failure to comply with an order of the Court.

But this is not an ordinary case or even an ordinary failure to comply. This was not inadvertence. Plaintiff deliberately elected, and announced it had elected, not to comply with the Court’s order in any respect; and even after the Court had announced a disposition to dismiss the case, plaintiff made no offer to comply and offered nothing to dissuade the Court from that course.

Such calculated, deliberate disregard of the Court’s authority and the force of its order, perhaps in character with the answers Judge Byrne had earlier termed “insolent”, is so utterly inconsistent with the administration of justice and the orderly conduct of the business of the Court that it cannot be tolerated, condoned, or ignored. If the Court is to discharge its-functions, its orders must be obeyed, and the Court has no choice when a party deliberately refuses to comply with an order, and persists in such refusal in the face of impending dismissal, but to utilize the remedy provided by Rule 41 (

b) and dismiss. The Court has been unable to find any other acceptable, less drastic, alternative to dismissal. The Court’s order of June 1, 1967 was clear and unmistakable, as were the Court’s oral instructions to plaintiff on May 22, 1967. Plaintiff’s refusal is equally clear and unmistakable. A further order to the same effect, expressly on pain of dismissal for non-compliance, would obviously be a useless act in these circumstances.

The last order provided expressly that non-compliance as to any claim would constitute an admission that the claim could not be proved and an abandonment of the claim, which has essentially the same effect. The only available alternative would be to let plaintiff have its way and let it over-rule the Court, but that is not acceptable. Plaintiff has simply left the Court no choice. The case, the complaint and each and every cause of action and claim for relief therein contained should be dismissed.

MOTION TO ELIMINATE ISSUES The “motion to eliminate issues” procedure which plaintiff proposed was adopted in order to determine whether any genuine issues existed for trial, to identify and define such genuine issues, and to dispose of all other possible issues. This was to place the case in a posture which would permit any remaining discovery and trial preparation to be completed promptly and efficiently by focusing on real issues only, permit a relatively early trial, and permit the trial to be conducted with dispatch.

Such definition of the real issues was absolutely necessary to permit reasonable preparation by the parties and to keep the trial within reasonable bounds. The Complaint was of no value for that purpose, for it essentially charged defendants with violating most of the antitrust laws in a wide variety of ways, without any definition of particular conduct which was claimed to constitute such wrongdoing. No focus for preparation or trial was provided. No parameters for relevancy were available.

Plaintiff claimed repeatedly that its Narrative and supporting documents constituted its entire case, and asserted it was ready to go to trial. (E. g., Transcript, December 12, 1966, p. 12, line 24 to p. 13, line 1; p. 14, lines 15-16). As indicated above, the Court suggested that a motion for

summary judgment, pursuant to Fed.R.Civ.P. 56, might be utilized to determine whether there were any genuine issues and to dispose of the rest. Such a procedure has been successfully followed in many cases, a few reported examples of which are: Holcomb v. Aetna Life Ins. Co., 255 F.2d 577, 580 (10th Cir. 1958), cert. denied, Fleming v. Aetna Life Ins. Co., 358 U.S. 879, 79 S.Ct. 118, 3 L.Ed.2d 110 (1958); Broderick Wood Prods. Co. v. United States, 195 F.2d 433, 435-437 (10th Cir. 1952); Berger v.

Brannan, 172 F.2d 241, 243 (10th Cir. 1949), cert. denied, 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746 (1949); Biggins v. Oltmer Iron Works, 154 F.2d 214, 217 (7th Cir. 1946); Becker v. Safelite Glass Corp., 244 F.Supp. 625, 631 (D.Kan.1965); United States v. National City Lines, 118 F.Supp. 465, 467-468 (N.D.Ill.1953); Waldron v. British Petroleum Co., 38 F.R.D. 170, 173, 174 (S.D.N.Y.1965), aff’d sub nom. Waldron v. Cities Service Co., 361 F.2d 671, 672 (2d Cir. 1966), cert. granted, 385 U.S. 1024, 87 S.Ct. 743, 17 L.Ed.2d 672 (1967).

Other courts have eliminated false issues by dismissal under Rule 16 when it appeared that plaintiff had no case. MacMaugh v. Baldwin, 99 U.S.App.D.C. 247, 239 F.2d 67, 68 (1956); Silvera v. Broadway Dept. Store, Inc., 35 F.Supp. 625, 627 (S.D.Cal.1940). Plaintiff proposed a procedure which envisioned elimination of some issues by agreement, and rulings by the Court on whether plaintiff’s evidence, described in the Narrative, etc., would suffice as a matter of law to sustain plaintiff’s claims on issues not determined by agreement.

Plaintiff’s proposed procedure was wholly consistent with the purpose and effect of Rules 16 and 56 and, since the Narrative, etc., are essentially pleadings, this procedure resembled the motion for judgment on the pleadings mentioned in Rule 12(c). In the circumstances, plaintiff’s procedure seemed to provide a more efficient and effective approach to the problem than could be achieved by following strictly the procedures expressly described by any of those Rules.

For example, to require plaintiff to furnish affidavits with respect to the matters set forth in its Narrative, etc., or in the documents referred to therein would simply waste effort. Such matters are before us, and we are assuming them to be admitted in evidence. If they do not suffice to show the existence of a genuine issue as to any material fact in their present form on that assumption, they could do no more if supported by a jurat and thereby rendered into affidavits. Plaintiff’s proposed procedure for the testing of its case was therefore adopted.

So far as the Court is aware, the procedure is unique, but a certain amount of inventiveness is necessary if complicated cases are to be tried or if essentially simple cases are to be identified as such and not tried as if they were complicated. See, e. g., “Short Cuts” in Long Cases — The Report (“Prettyman Report”), 13 F.R.D. 41, 62, 66 (1951); Handbook of Recommended Procedures for the Trial of Protracted Cases, 25 F.R.D. 351, 373, 389 (1960). The Rules expressly authorize the adoption of special procedures in special cases. Fed.

R.Civ.P. 83 provides that “In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules”, and Local Rule 23 is to the same effect. Plaintiff has, of course, despite promises to the contrary, adamantly refused to follow the procedure which it proposed, and the Court adopted, taking the position that it is not required to “segmentize” its case. (E. g., Transcript, May 22, 1967, p. 60, line 25 to p. 61, line 1; p. 37, lines 13-22).

This has severely hampered analysis of the case and the determination of the motion to eliminate issues on the merits. Despite this, the Court has carefully reviewed plaintiff’s entire submission: its Narrative, the various appendices to the Narrative, its Preliminary Response to the motion to eliminate issues, its Supplemental Response, and its Oral Testimony and Documentary Evidence Supporting Plaintiff’s Claim of Violations of the Antitrust Laws ("OTDE”).

The Court has also reviewed the documents to which plaintiff referred in its presentation, copies of which were supplied by defendants as Exhibit I to their memorandum in support of their motion, and the pricing data taken from invoices cited by plaintiff in its presentation, supplied by defendants as Exhibit III to their memorandum. Plaintiff has not challenged the correctness of either of such Exhibits which defendants furnished to supply factual material to which plaintiff referred, but which could not be ascertained from plaintiff’s presentation.

Plaintiff has been given a full opportunity to place its case before the Court. When it developed at the hearing on May 22, 1967 that, despite plaintiff’s earlier representations, the Narrative and appendices did not contain plaintiff’s “entire case”, the matter was continued, and plaintiff was not merely given an opportunity, but was expressly ordered, to present its entire case, everything it had. Package Mach. Co. v. Hayssen Mfg. Co., 266 F.2d 56, 57 (7th Cir. 1959), aff’d 164 F.Supp. 904, 911-912 (E.D. Wis.1958); Berger v.

Brannan, 172 F.2d 241, 243 (10th Cir. 1949), cert. denied 337 U.S. 941, 69 S.Ct. 1519 (1949); McDonald v. Bowles, 152 F.2d 741, 743 (9th Cir. 1945); Becker v. Safelite Glass Corp., 244 F.Supp. 625, 631 (D.Kan.1965); Mitchell v. RKO Rhode Island Corp., 22 F.R.D. 232, 234-235 (D.Mass.1958); Maple Drive-In Theatre Corp. v. Radio-Keith-Orpheum Corp., 1957 Trade Cas. ¶ 68,666 (S.D.N.Y.1957). It filed its OTDE.

At the hearing on July 31, 1967, the Court indicated that it could find nothing in the materials before it, including the OTDE, which would support a claim by plaintiff against defendants under the antitrust laws (Transcript, July 31, 1963, p. 12, lines 15-23). Even then, the Court offered plaintiff a further opportunity to offer proof,- but plaintiff elected to stand on the record (Id. at p. 13, lines 7-19). The Court has analyzed the entire case, both by reference to the issues defined by defendants in their motion and also as a “broad mosaic” to see whether plaintiff showed a claim on the merits.

In that connection, it assumed that all of the documents and testimony to which plaintiff referred would be admissible and admitted in evidence to prove the truth of the matters stated or contained therein. This is a palpably unreasonable assumption, for much of the testimony is obviously hearsay or beyond the scope of the witness’ personal knowledge, and many of the documents are obviously not admissible for one or more reasons.

Nevertheless, the assumption has been indulged, on the theory that the case should be tested on the most favorable facts plaintiff could hope to prove or which might be inferred from its proof, and if some of this evidence is not admissible, perhaps before trial ended plaintiff could find something else to the same general effect which would be admissible. Similarly, the Court has viewed the evidence and the facts in the light most favorable to plaintiff, resolving all doubts in its favor, and drawing all possible inferences favorable to plaintiff.

The test which the Court applied in determining whether there was a genuine issue for trial and in eliminating false issues was whether, taken as a whole and indulging all the aforementioned assumptions, the materials before the Court would constitute a prima facie case against defendants, or either of them. That is the test which would be applied if a jury had been impaneled, the materials were in evidence, and the Court were ruling on a motion for directed verdict. 5 Moore, Federal Practice ¶ 50.02 [1], at 2317 (2d ed. 1966); Gordon v. Illinois Bell Tel.

Co., 330 F.2d 103, 106 (7th Cir. 1964), cert. denied, 379 U.S. 909, 85 S.Ct. 197, 13 L.Ed.2d 182 (1964) ; O’Brien v. Westinghouse Elec. Corp., 293 F.2d 1, 8 (3d Cir. 1961); Olympia Oyster Co. v. Rayonier Inc., 229 F.Supp. 855, 856 (W.D.Wash.1964); Independent Iron Works, Inc. v. United States Steel Corp., 177 F.Supp. 743, 746 (N.D.Cal.1959), aff’d, 322 F.2d 656, 661 (9th Cir. 1963), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 165 (1963). The same test is properly applied in ruling on a motion for

summary judgment on the ground that there are no disputed issues of fact and as matter of law plaintiff could not prevail and defendants are entitled to judgment. Duarte v. Bank of Hawaii, 287 F.2d 51, 54-55 (9th Cir. 1961), cert. denied, 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261 (1961)Byrnes v. Mutual Life Ins. Co., 217 F.2d 497, 500 (9th Cir. 1954), cert. denied, 348 U.S. 971, 75 S.Ct. 532, 99 L.Ed. 756 (1955) ; Gifford v. Travelers Protective Ass’n., 153 F.2d 209, 211 (9th Cir. 1946); Neff v. World Publishing Co., 349 F.2d 235, 239 (8th Cir. 1965); Bolack v.

Underwood, 340 F.2d 816, 819 (10th Cir. 1965); Elbow Lake Cooperative Grain Co. v. Commodity Credit Corp., 251 F.2d 633, 637 (8th Cir. 1958); Appolonio v. Baxter, 217 F.2d 267, 270-271 (6th Cir. 1954); Zampos v. United States Smelting, Ref. & Mining Co., 206 F.2d 171, 173 (10th Cir. 1953); Durasteel Co. v. Great Lakes Steel Corp., 205 F.2d 438, 441 (8th Cir. 1953); Gibson v. Security Trust Co., 201 F.2d 573, 575 (4th Cir. 1953); Hurd v. Sheffield Steel Corp., 181 F.2d 269, 271 (8th Cir. 1950); Christianson v. Gaines, 85 U.S.App.D.C. 15, 174 F.2d 534, 536 (1949); Parmelee v.

Chicago Eye Shield Co., 157 F.2d 582, 584-585 (8th Cir. 1946); Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871, 877 (6th Cir. 1943), cert. denied, 320 U.S. 800, 64 S.Ct. 431, 88 L.Ed. 483 (1944); Cimijotti v. Paulsen, 230 F.Supp. 39, 42 (E.D.Pa.1964), aff’d per curiam, 340 F.2d 613 (8th Cir. 1965); Pittsburgh Hotels Ass’n v. Urban Redevelopment Authority, 202 F.Supp. 486, 487-488 (W.D.Pa.), aff’d, Hilton Hotels Corp. v. Urban Redevelopment Authority, 309 F.2d 186, 189-190 (3d Cir. 1962), cert. denied, 372 U.S. 916, 83 S.Ct. 730, 9 L.Ed.2d 723 (1963); Bass v. Southern Pac.

Co., 196 F.Supp. 763, 765-766 (D.Or.1961); Bank of China v. Wells Fargo Bank & Union Trust Co., 104 F.Supp. 59, 62 (N.D.Cal.1952), aff’d and modified, 209 F.2d 467 (9th Cir. 1953); Kantarof v. Orsecki, 102 F.Supp. 196, 197 (S.D.N.Y.1952); Miller v. Hoffman, 1 F.R.D. 290, 292 (D.N.J.1940); 35B C.J.S. Federal Civil Procedure § 1147 (1960). ISSUES ELIMINATED BY AGREEMENT In its Preliminary Response, plaintiff admitted that it did not make the claims specified in issues numbered 1, 2, 3, 10 and 11 in the Motion to Eliminate Issues. The motion is granted as to those issues.

By reason of the foregoing admission, plaintiff admitted that Martin-Marietta and Interchemical did not contract, combine or conspire with each other or with their respective employees in violation of the antitrust laws. Each of the defendants participated in the matters to which this case relates, through and only through the Presstite Division when they respectively and successively owned it.

This permits the case to be analyzed by reference to the conduct of the Presstite Division as if it were a separate entity and the sole defendant, for obviously if no claim could be sustained against the Presstite Division, no case could be made against either defendant, and that analytical method will be followed. Of course, if a claim could be sustained against the Presstite Division, then the question of which of the defendants was liable therefor would be presented, but since no such claim is found, the question does not arise.

THE FACTS Viewed in the light most favorable to plaintiff and indulging all inferences in plaintiff’s favor, the Court finds that the materials before it could prove or reasonably support inferences of the following facts: 1. Martin-Marietta Corporation is a Maryland corporation qualified to do business in California, having its principal office in New York, New York. During all relevant times prior to July 1, 1963, it was the owner of the Presstite Division. Effective July 1, 1963, it sold the Presstite Division to Interchemical Corporation. 2.

Interchemical Corporation is an Ohio corporation, qualified to do business in California, having its principal office in New York, New York. Effective July 1, 1963, Interchemical purchased the assets and business of the Presstite Division from Martin-Marietta, and it has continued to own such assets and to conduct such business from said date until the present. Following such purchase, Interchemical employed most of the persons who had theretofore been employed by Martin-Marietta in the conduct of the business of the Presstite Division. 3.

The Presstite Division is the successor to the business of Presstite Engineering Company, a corporation, but at no relevant time has Presstite Division been a corporation separate from the corporation, Martin-Marietta or Inter-chemical, which owned its assets. The Presstite Division is and at all relevant times has been engaged in the business of manufacturing and selling sealing products and related products. It maintains manufacturing facilities at St. Louis, Missouri where its principal factory and main office is situated; Chicago Heights, Illinois; Jackson, Michigan; and El Segundo, California.

The Presstite Division, considered apart from its corporate owner, is the largest manufacturer whose product is devoted substantially exclusively to sealing products and related products. The Presstite Division manufactures more different shapes, sizes and styles of sealing products and related products than any other manufacturer. The products of no one other manufacturer, or any combination of other manufacturers, would exactly duplicate the products of the Presstite Division.

There are, however, other manufacturers and sellers of sealing products and related products who compete with the Presstite Division to supply products for the same end uses. There is some competition for every product of the Presstite Division, and much competition for some products. Some of the competitors compete only as to a few products, while others compete over a broader spectrum. Most of the products of the Presstite Division are sold under one or more trademarks owned by the Presstite Division including, but not limited to the trademark “Presstite”. 4.

Initially all of the Presstite products distributed in California, Arizona and Nevada were manufactured at St. Louis, Chicago Heights, or Jackson. Prior to 1960, the Presstite Division acquired The Techkote Company and its manufacturing facility at El Segundo. Thereafter, the Presstite Division commenced to manufacture at El Segundo products which theretofore had been manufactured elsewhere, and the number of products so manufactured at El Segundo increased from time to time.

The El Segundo operation did not work out as well and was not as profitable as the Presstite Division might have expected it to be, and it was unable to manufacture at El Segundo some products, significant, to its business, which it had expected to manufacture there. 5. Plaintiff is a California corporation with its principal place of business in Los Angeles. All of its stock is owned by James H. Berry, who is the President of plaintiff. During part of the time relevant hereto, one-half of the stock of plaintiff was owned by Harold E. Staub.

During all relevant times, commencing prior to 1960 and continuing to the present, plaintiff has conducted a successful business as a distributor of cement-asbestos board manufactured by Johns-Manville, and related products, and as a contractor specializing in the construction of walk-in refrigerator boxes. 6. Commencing about 1950, plaintiff’s predecessor, Hubbard & Stau, later the Hubbard Company hereinafter referred to as “Hubbard”) distributed Presstite products in the West.

In due course it acquired exclusive distribution rights for such products in the industrial and construction markets in California, Arizona and Nevada. There was a series of written contracts and addenda thereto respecting such distribution. In 1961, except for three distributors to the trailer industry and a few other exceptions, Hubbard had by contract the exclusive right to distribute such Presstite products to such markets in such area.

Hubbard’s contract provided that it would not deal in products competitive to Presstite products without consent of ■the Presstite Division and that it would not sell Presstite products to certain classes of customers. Hubbard distributed several products of various kinds in addition to Presstite products. 7. In January 1961, plaintiff contracted to purchase the business and goodwill of Hubbard, subject to certain conditions, including the condition that plaintiff be satisfied that it could distribute Presstite products on the same basis as Hubbard had done. In late January or early February 1961, Messrs.

Berry and Staub, then the principal officers and shareholders of plaintiff, went to St. Louis and met with the principal officers of the Presstite Division as well as with other Presstite personnel. Those officers orally promised Berry and Staub that if plaintiff purchased Hubbard, plaintiff could be the Presstite distributor in California, Arizona and Nevada on the same terms as Hubbard then enjoyed and would continue to be such as long as plaintiff did a good job.

In reliance on this assurance, plaintiff completed the purchase of Hubbard and embarked on the business of distributing Presstite products and other products theretofore distributed by Hubbard, in addition to its other businesses. There was never a written contract or agreement between plaintiff and the Presstite Division confirming or defining the relationship between them. 8. At the time it was purchased by plaintiff, Hubbard maintained an office, warehouse, and sales force in Los Angeles, an office and salesman in San Francisco, and a salesman in San Diego.

Hubbard also supplied Presstite products to subdistributors who resold the same to users in particular industries. For example, Hastings Plastics resold certain products to plastic fabricators and Jones Foundry Supply and Barker Foundry Supply resold Kopeseal to the foundry industry. Hubbard also supplied a Presstite product to Filón, a manufacturer of fiberglass reinforced plastic panels, under Filon’s private label, which Filón redistributed with and for use with its plastic panels.

Of course, Hubbard also supplied Presstite products to a wide variety of manufacturers, building contractors and subcontractors, and other users of the products. 9. Following its acquisition of the Hubbard business of distributing Press-title products and other products, plaintiff continued that business generally in the manner in which it had theretofore been conducted by Hubbard. In addition, plaintiff instituted some new policies by way of advertising and attempts to find new applications for Presstite products designed to expand the business.

Of course, plaintiff held sales meetings to acquaint its salesmen primarily dealing in other products with the Presstite products, so that they could be alert to sales opportunities for Presstite products in connection with their other calls. Plaintiff was encouraged and complimented on its endeavors in this connection by Presstite personnel at many levels of responsibility and authority. 10.

Shortly following plaintiff’s acquisition of the Hubbard business, the Presstite Division commenced to sell to Hastings Plastics the Presstite products which Hastings had theretofore purchased from Hubbard at a price equal to or less than the price at which plaintiff purchased such goods from the Presstite Division. This, of course, deprived plaintiff of business on which it theretofore had enjoyed a mark-up. 11.

At about the same time, the Presstite Division commenced to sell the Filón private label goods, which had theretofore been sold through Hubbard and, briefly, plaintiff, to Filón on a direct basis at the same price as that at which such goods had been purchased by plaintiff. This deprived plaintiff of business on which it theretofore had enjoyed a mark-up. 12.

During this same period, Harry Lowry, Presstite’s Western Sales Manager, prepared a survey of the West Coast distributor situation, recommending to the Presstite management that larger sales be handled on a direct basis and that only sales of $500 or less be handled through distributors. 13. In March of 1961, an agreement was made between the Presstite Division and Boething-Franeis whereby BoethingFrancis would distribute certain Presstite products to the trailer trade and would purchase the same at distributor prices. 14.

In March of 1961, the Presstite Division commenced to sell a limited number of its products at distributor prices to Yates Products Company, a distributor of sealants, adhesives and other products to the trailer industry. Yates had purchased such Presstite products theretofore from Hubbard and plaintiff. Plaintiff was thereby deprived of some business on which it had theretofore enjoyed a mark-up. 15. In October of 1961, the Presstite Division made an agreement with Harold A.

Price Company of Richmond, California, whereby Price could purchase a limited number of Presstite products at distributor prices for resale in Northern California. The number of such products handled by Price increased. By January of 1963, plaintiff’s business in San Francisco had declined to the point that plaintiff closed its San Francisco office. Thereafter, the Presstite Division advised plaintiff that its territory was reduced to the portion of California southerly of Monterey, Kern and Mono counties. 16.

During much, if not all, of the period referred to in the complaint, Elixir Paint & Lacquer Co. was able to purchase Presstite products, which it distributed to the trailer trade, from the Presstite Division at a price lower than the price at which such products were available to plaintiff. 17. Commencing about March of 1963, and continuing thereafter, the Presstite Division sold Kopeseal, a Presstite product, at distributor prices to Jones Foundry Supply and Barker Foundry Supply Co., both of whom had theretofore purchased their requirements of Kopeseal from plaintiff, for resale to the foundry trade.

Plaintiff was thereby deprived of some business on which it had theretofore enjoyed a mark-up. In July of 1963, the Presstite Division offered Jones a discount on Kopeseal for resale to Kaiser which was substantially greater than any discount which had ever been offered to plaintiff on that product. 18. From time to time, the Presstite Division sold Presstite products to other persons who had theretofore purchased their requirements for such Presstite from plaintiff, thereby depriving plaintiff of business on which it theretofore had enjoyed a mark-up. 19. George D.

Kite had been employed by Hubbard as a salesman from 1952 until plaintiff purchased the Hubbard business. Thereafter plaintiff employed Kite as a salesman, and by September of 1963, Kite was plaintiff’s most valued and principal salesman of Presstite products. In September of 1963, the Presstite Division determined to begin selling its products on a direct basis to essentially everyone in the Los Angeles area who cared to purchase them. In this connection, Presstite employees held the view that the Presstite Division could get 95% of plaintiff’s business if the Presstite Division would hire Kite.

The Presstite Division did hire Kite as a salesman, at a salary increase of more than 20%, and commenced direct selling. The Presstite Division did not advise plaintiff of its intentions prior to hiring Kite. 20. At the time of his employment by the Presstite Division, Kite had in his possession fairly complete records of plaintiff’s customers for Presstite products and their respective requirements.

Kite utilized those records in selling Presstite goods for the Presstite Division on a direct basis to persons who had been customers of plaintiff for such Presstite products, and since the price at which such goods could be obtained from the Presstite Division was lower than the price which plaintiff had been charging for such goods, most of such persons thereafter purchased their requirements of such products from the Presstite Division. 21.

Throughout this period, until it hired Kite, the Presstite Division encouraged plaintiff to greater efforts, congratulated it on its successes, promised full cooperation, and denied any intention to injure plaintiff’s business. Although the Presstite Division complained, from time to time, about small orders and other relatively insignificant matters, plaintiff had no warning that the Presstite Division was planning to sell its products to everyone on a direct basis until after Kite had been hired and it was about to commence to do so. 22.

After the Presstite Division hired Kite and commenced selling its products on a direct basis to everyone in the Los Angeles area who cared to purchase them, plaintiff’s business in Presstite products was drastically reduced. Plaintiff continues to purchase Presstite products from the Presstite Division at distributor prices and to resell them, but the volume of such business is insignificant when compared with the volume of such business which plaintiff enjoyed when it first purchased the Hubbard business. The foregoing factual

summary does not include matters which seem relevant only to Robinson-Patman Act claims. Such matters will be mentioned in connection with the discussion of such claims. Other more specific facts may be mentioned from time to time in connection with particular discussions. THE MERITS The materials before the Court would not sustain a verdict for plaintiff, under

section 4 of the Clayton Act, 15 U.S.C. § 15, for damages for injury to plaintiff’s business or property by reason of anything forbidden by the antitrust laws on any theory which has been suggested to or which has occurred to the Court. The Court can find no combination, conspiracy or agreement unreasonably to restrain interstate commerce, no unlawful monopoly, no attempt to monopolize, no violations of the RobinsonPatman Act, in short, nothing forbidden by the antitrust laws. As will hereafter appear, plaintiff has pointed to a few isolated instances of conduct which could, with more, constitute unlawful conduct, but (

a) there is no indication that the additional matters necessary to a finding of unlawfulness exist, (

b) such matters standing alone would not support an inference of unlawful conduct, and (

e) there is nothing to indicate that plaintiff sustained any injury by reason of such matters, the nature of the matters being such that injury could not be presumed. In these circumstances, plaintiff’s “entire case” does not constitute a prima facie case against defendants, or either of them, and as a matter of law, plaintiff could not prevail against defendants. Defendants should have judgment forthwith.

A more detailed analysis follows: Monopoly In its Supplemental Response, plaintiff stated its position thus (p. 2, lines 13-16): “Defendants, both, monopolized the sale of Presstite products in the Southern California area when they, in succession, took over the business of plaintiff in such products, by predatory means.” In this connection, plaintiff referred to its argument with respect to attempt to monopolize, and in that argument plaintiff said: “The attempts to monopolize resulted in a complete monopoly of plaintiff’s business of selling Presstite products —when plaintiff was driven out of this business in September 1963.” (Id. at p. 3, line 32 to p. 4, line 3) The charge, then, is that the Presstite Division monopolized the sale of Presstite products in Southern California or that the Presstite Division monopolized the portion of the sale of Presstite products which might otherwise have been handled by plaintiff.

No violation of

section 2 of the Sherman Act is encompassed in those charges. Of course, in a sense, the Presstite Division had a monopoly over Presstite products and all phases of their distribution. The Presstite Division manufactured the Presstite products and sold most of them under one or more trademarks it owned. It necessarily had the power to control the manufacture and sale of Presstite products and to exclude competition in the manufacture and sale of Presstite products. But the existence of that power is not illegal. The Supreme Court recognized this in United States v. E. I.

Du Pont De Nemours & Co. (Cellophane), 351 U.S. 377, 393, 76 S.Ct. 994, 1006, 100 L.Ed. 1264, 1279 (1956): “Thus one can theorize that we have monopolistic competition in every non-standardized commodity with each manufacturer having power over the price and production of his own product.

However, this power that, let us say, automobile or soft-drink manufacturers have over their trademarked products is not the power that makes an illegal monopoly.” And other courts have uniformly held that the inherent power of a manufacturer over his own trademarked goods is not illegal monopoly power, particularly when such goods are in competition with other goods,: “The trade-mark laws, like the patent laws, give the owner a monopoly which neither the Sherman Act nor any other act of Congress forbids.

It would be a paradox to say that the exercise of a right, expressly granted by law is unlawful.” Coca-Cola Co. v. J. G. Butler & Sons, 229 F. 224, 232 (E.D.Ark.1916). “Where commodities are competitive and reasonably interchangeable, the relevant market cannot be confined to the products of one manufacturer.” South End Oil Co. v. Texaco, Inc., 237 F.Supp. 650, 656 (N.D.Ill.1965). “It has long been recognized that a manufacturer has a right to a monopoly in the sale and distribution of its own product.” A-1 Business Mach. Co. v.

Underwood Corp., 216 F.Supp. 36, 37 (E.D.Pa.1963). “Every manufacturer has naturally a complete monopoly of his particular product especially when sold under his own private brands, and no private controversy with a distributor could legally tend to increase that type of a natural monopoly. The Sherman Act is, therefore, clearly not really involved.” Arthur v.

Kraft-Phenix Cheese Corp., 26 F.Supp. 824, 828 (D.Md.1938). “Every manufacturer has a natural and complete monopoly of his particular product, especially when sold under his own private brand or trade name. * * * If he is engaged in a private business, he is free to exploit this monopoly by selling his product directly to the ultimate consumer or through one or more distributors or dealers, as he may deem most profitable to him. If he chooses the latter method, he may exercise his own independent discretion as to the parties with whom he will deal.

This is a common law right which the anti-trust laws have not destroyed.” Schwing Motor Co. v. Hudson Sales Corp., 138 F.Supp. 899, 902 (D.Md.1956), aff’d per curiam, 239 F.2d 176 (4th Cir. 1956); cert. denied, 355 U.S. 823, 78 S.Ct. 30, 2 L.Ed.2d 38 (1957). To the same general effect, Walker Distrib. Co. v. Lucky Lager Brewing Co., 323 F.2d 1, 9 (9th Cir. 1963); Ace Beer Distribs., Inc. v. Kohn, Inc., 318 F.2d 283, 286-287 (6th Cir. 1963) cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1963); Nelligan v. Ford Motor Co., 262 F.2d 556, 557 (4th Cir. 1959) ; Kemwell Auto. Corp. v.

Ford Motor Co., 1966 Trade Cas. ¶ 71,882, at 83,096 (S.D.N.Y.1966); Moutoux v. Gulling Auto Elec., Inc., 1963 Trade Cas. ¶ 70,639, at 77,606 (S.D.Ind.1962). Clearly the existence in the Presstite Division of monopoly power over the manufacture, distribution and sale of its own products is not unlawful, and any claims based simply on the existence of that power must fail.

Plaintiff charges, however, not merely that the power existed but that it was ruthlessly exercised to destroy plaintiff’s business by creating a new distributor to compete with plaintiff, by by-passing plaintiff and dealing on a direct basis with some of plaintiff’s better customers, and eventually by hiring plaintiff’s star salesman and stealing the bulk of plaintiff’s business, all the while utilizing “discriminatory” pricing policies in aid of such destruction and, all in violation of plaintiff’s contractual right to be the exclusive distributor of Presstite products in its territory as long as it did a good job.

But the exercise by the Presstite Division of its lawful monopoly power in the manner charged does not make its lawful monopoly over its own products unlawful. The Presstite Division at any time could have terminated plaintiff’s distributorship of Presstite products, appointed a new distributor and refused to deal further with plaintiff, without making its natural monopoly of its own products illegal or otherwise violating the antitrust laws. Such was held to be lawful with respect to other manufacturers, distributors and products in each of the following cases in which a monopoly charge was made: Walker Distrib.

Co. v. Lucky Lager Brewing Co., 323 F.2d 1, 8-9 (9th Cir. 1963); Ace Beer Distribs., Inc. v. Kohn, Inc., 318 F.2d 283, 286-287 (6th Cir. 1963), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1963); Moutoux v. Gulling Auto Elec., Inc., 1963 Trade Cas. ¶ 70,639 (S.D.Ind.1962); Schwing Motor Co. v. Hudson Sales Corp., 138 F.Supp. 899, 903 (D.Md.1956), aff’d per curiam, 239 F.2d 176 (4th Cir. 1956), cert. denied, 355 U.S. 823, 78 S.Ct. 30, 2 L.Ed.2d 38 (1957).

Or the Presstite Division could have terminated plaintiff’s distributorship of Presstite products, refused to deal further with it and thereafter dealt exclusively with some other existing distributor. Packard Motor Car Co. v. Webster Motor Car Co., 243 F.2d 418, 420-421 (D.C.Cir. 1957), cert. denied, 355 U.S. 822, 78 S.Ct. 29, 2 L.Ed.2d 38 (1957); South End Oil Co. v. Texaco, Inc., 237 F.Supp. 650, 654 (N.D.Ill. 1965).

The net of this necessarily is that, as far as the antitrust laws are concerned, the Presstite Division was free at anytime to alter its distribution system in any manner satisfactory to it without thereby rendering its natural lawful monopoly over its own products unlawful. An improper or unfortunate motive will not convert

an act which is otherwise lawful under the antitrust laws into

an act prohibited by the antitrust laws. The following cases provide examples of this: Hunt v. Crumboch, 325 U.S. 821, 824-825, 65 S.Ct. 1545, 1547, 89 L.Ed. 1954, 1956-1957 (1945), where the motive was to destroy plaintiff’s business in retaliation for the death of a union man during a strike— plaintiff having been acquitted of the killing; Ace Beer Distribs., Inc. v. Kohn, Inc., 318 F.2d 283, 286 (6th Cir. 1963), cert. denied, 375 U.S. 922, 84 S.Ct. 267 (1963), where the motive was maliciously to destroy plaintiff’s business; Arthur v. Kraft-Phenix Cheese Corp., 26 F.Supp. 824, 829 (D.Md.1938), where the motive apparently was to collect a shakey debt. Similarly,

an act which may lawfully be done under the antitrust laws is not made unlawful under the antitrust laws by being performed in a reprehensible manner or in a manner which violates laws other than the antitrust laws. In Apex Hosiery Co. v.

Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311 (1940), involving “a lawless invasion of petitioner’s plant and destruction of its property by force and violence of the most brutal and wanton character,” the Supreme Court said: “Restraints not within the [Sherman] Act, when achieved by peaceful means, are not brought within its sweep merely because, without other differences, they are attended by violence.” 310 U.S. at 513, 60 S.Ct. at 1002-1003, 84 L.Ed.2d at 1334. To the same effect in differing factual settings, see: Eastern R. R. Presidents Conference v.

Noerr Motor Freight, Inc., 365 U.S. 127, 139-140, 81 S.Ct. 523, 530-531, 5 L.Ed.2d 464, 472 (1961), involving unethical tactics in attempting to influence legislation detrimental to the trucking industry; Walker Distrib. Co. v. Lucky Lager Brewing Co., 323 F.2d 1, 5, n. 1 (9th Cir. 1963), involving a conspiracy between a manufacturer and an individual to get plaintiff’s distributorship of the manufacturer’s product for the individual; Ace Beer Distribs., Inc. v.

Kohn, Inc., 318 F.2d 283, 286 (6th Cir. 1963), cert. denied, 375 U.S. 922, 84 S.Ct. 267 (1963), involving destruction of plaintiff’s business by conspiracy to terminate its distributorship and by hiring away most of its employees, causing them to quit suddenly without notice; Parmelee Transp. Co. v. Keeshin, 292 F.2d 794, 804 (7th Cir. 1961), cert. denied, 368 U.S. 944, 82 S.Ct. 376, 7 L.Ed.2d 340 (1961), involving obtaining a lawful transportation monopoly and the destruction of plaintiff’s business, through the corruption of, and abuse of office by, a public official; A-1 Business Mach. Co. v.

Underwood Corp., 216 F.Supp. 36, 37 (E.D.Pa.1963), involving “reprehensible” interference with plaintiff’s business relationships in the protection of defendant’s monopoly of its own product. Therefore, accepting plaintiff’s characterizations of the conduct and motives of the Presstite Division, and assuming such conduct and motives to be morally wrong or legally wrong by some law other than the antitrust laws, still, so far as

section 2 of the Sherman Act is concerned, the Presstite Division has done no more than to exercise its lawful rights with respect to its own product, and it has done nothing proscribed by that section. “[The Sherman] Act does not purport to afford remedies for all torts committed by or against persons engaged in interstate commerce.” Hunt v.

Crumboch, 325 U.S. 821, 826, 65 S.Ct. 1545, 1548, 89 L.Ed. 1954, 1957 (1945). “[T]he use of conventional antitrust language * * * will not extend the reach of the Sherman Act to wrongs not germane to that act, even though such wrongs be actionable under state law. * * * The antitrust laws were never meant to be a panacea for all wrongs.” Parmelee Transp. Co. v. Keeshin, 292 F.2d 794, 804 (7th Cir. 1961), cert. denied, 368 U.S. 944, 82 S.Ct. 376, 7 L.Ed.2d 340 (1961).

After being advised at the hearing on May 22, 1967 that the Court could not find anything unlawful about the “monopoly” the Presstite Division had over its own products, plaintiff commenced its OTDE with the following statement: “Plaintiff claims that defendants in their ownership and operation of the Presstite Division had monopoly power ; that is, the power to control prices and exclude competition.

Plaintiff also claims that the oral testimony and documentary evidence demonstrate that defendants (in Presstite) possessed the specific intent to exercise such power, or to acquire and exercise such power, with respect to a part of commerce — to the injury and damage to plaintiff’s business and property.” The opening statement is followed by seven pages of deposition testimony by Harry Lowry in which he identifies a document entitled “Available Products Manufactured by Competitors Which Are Functionally Equivalent to Presstite Products”, testifies that he does not know who made it or how it was prepared, testifies that it is inaccurate in including as competitive products which are not and in failing to include substantial competitors, and finally testifies that “no group of companies as high as the 70 listed here could supply an exact duplication of the [Presstite] materials.” Lowry’s testimony also indicated that there was plenty of competition for Presstite materials on the basis of functional equivalence, and the document “Available Products [etc.]”, although the copy furnished to the Court was substantially illegible, indicates (

a) that, accepting Lowry’s count, Presstite has 70 or more competititors for various products, (

b) that Presstite has at least one competitor for every product and up to 22 competitors for some (1175 and 1176), (

c) that, if the abbreviations refer to companies commonly known by similar names, Presstite’s competitors are not insubstantial companies — 3M competes in 47 categories of products, and other competitors include Flintkote, Johns-Manville, Standard Oil, Sun Oil, Armstrong Cork, PPG, U. S. Rubber, General Tire, B. F. Goodrich, Dow, and others, (

d) that some competitors obviously have a broad line of products and compete on a functional basis with Presstite over a broad spectrum of products — 3M, Tremco, Thiem, Arenco, Mortell, Chemical Sealants, DAP, Daubert, and (

e) that there are many competitors on the popular items (1175, 1176, 1190, 582, 579, 576, 570, 427, 163, 162 — in each case with variant suffixes — and others). There is no indication, in the OTDE or in any of the rest of plaintiff’s submission, of Presstite’s market position as to any one or more or all of the products. There is nothing anywhere in plaintiff’s presentation to show what the “relevant market” might be, whether with respect to “sealants” generally, or particular kinds of sealants, or sealants for particular uses, or whatever.

There simply is no evidentiary support for the proposition that the Presstite Division had a monopoly of anything other than Presstite products, such proof as there is being to the effect that the Presstite Division does not have a monopoly position with respect to sealants generally, or with respect to any particular kind or kinds of sealants, or with respect to anything at all other than its own products. At page 8, lines 19-21, of the OTDE, plaintiff quotes from United States v. E. I.

Du Pont De Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956), (hereinafter referred to as Cellophane) that “ ‘If cellophane is the “market” that DuPont is found to dominate, it may be assumed it does have monopoly power over that “market”.’ ” From that, plaintiff concludes, at lines 22-25, that “Likewise, if sealants are the market'and the Presstite Division dominates that market, it may be assumed that defendants have monopoly power over that market.” Principal difficulty with such reasoning is that there is no proof at all of either of the factors in the “if” clause, i. e., no proof that “sealants are the market” and no proof that “Presstite dominates that market.” In Cellophane, the quoted statement was preceded by the recital that the proof showed that DuPont produced 75% of the cellophane sold in the United States, that Sylvania produced all the rest, and that DuPont controlled access to the technique without which commercial manufacture of cellophane was impossible, all of which indicates a different situation from that presented here.

At lines 7-13 on page 9 of the OTDE, plaintiff argues: ' “Since defendants in the Presstite Division have a line of products in the sealant market that can be matched only through a combination of products of 30 to 50 different manufacturers, it cannot be questioned that they also have the requisite monopoly power to control prices or exclude competition in the sealant market. At least, there is sufficient evidence in the showing made upon which a jury can make such a finding.” That reasoning is completely specious.

Market dominance with respect to controlling prices and competition simply is not a correlative of number of products or competitors it would take to duplicate the line. The fact that no one has chosen to compete with the Presstite Division as to all its products proves nothing at all with respect to the market position or power of the Presstite Division as to sealants generally or as to any particular category of sealants.

The next segment of the OTDE, pages 9-18, quotes at length from a survey of Presstite distributors in the West Coast Market made by Lowry and ends with the claim that the survey establishes Presstite’s power to exclude competition and control prices by selling' to plaintiff’s customers on a direct basis at prices established by Presstite. However, there is nothing unlawful in the' fact that Pressite had power to sell its goods to whomever it chose and to do so at prices satisfactory to it.

Lowry’ssurvey was simply a review of the situation then existing and a series of recommendations for revisions in the distribution policy of the Presstite Division to meet the necessities of competition, and as other evidence quoted by plaintiff at page 18 shows, his suggestions were not accepted by the Presstite Division management. Under the available proof, the only “monopoly” power which the Presstite Division has or had was with respect to its own products, manufactured by it and, for the most part, sold under its trademarks.

Plaintiff’s statement of its claims in broader terms in the OTDE cannot obscure that fact. As indicated above, having such power over its own products does not violate the antitrusts laws and cannot provide a source for a claim in plaintiff. The motion to eliminate issues is granted as to issues numbered 4 and 5, i. e., any claim that Martin-Marietta or Interchemical monopolized any part of interstate trade and commerce in sealing compounds or other products.

Attempt to Monopolize In its Supplemental Response, plaintiff set forth its position with respect to attempts to monopolize by referring generally to the Presstite Division’s “campaign to eliminate plaintiff as a distributor of such [Presstite] products and to take over such business of plaintiff” (p. 3, lines 17-19), to the hiring by the Presstite Division of George Kite and the establishment of Presstite’s own direct selling organization, and to portions of its Narrative for details respecting the loss of its customers.

It concludes by stating that “The attempts to monopolize' resulted in a complete monopoly of plaintiff’s business of selling Presstite products— when plaintiff was driven out of this business in 1963.” (p. 3, line 32 to p. 4, line 3). Plaintiff says nothing about .attempts to monopolize in its OTDE.

There is no suggestion that the Presstite Division attempted to monopolize trade and commerce in sealing compounds or related products generally, or that the Presstite Division attempted to monopolize or exert any power at .all over anything other than Presstite products, and the Court finds no evidence of such attempt in its own review •of the materials before it. Plaintiff admits and the evidence clearly demonstrates that Presstite products are in ■competition with other sealing compounds and related products.

The claim is simply that the Presstite Division attempted to monopolize the sale of its own Presstite products. As noted above, the Presstite Division always had a “monopoly” of sorts in the manufacture, distribution and sale of Presstite products. That is the natural result of the fact that it manufactures the products and sells most of them under its own trademarks. It is also entirely legal.

It would be simply absurd to find a violation of the antitrust laws by characterizing Presstite’s conduct as an attempt to obtain the lawful monopoly it always had. “It cannot be conceived that assertions of attempts by defendant to monopolize the export sales of its own products would improve plaintiff’s legal position one whit.” Kemwell Auto. Corp. v. Ford Motor Co., 1966 Trade Cas. ¶ 71,882, at 83,096 (S.D.N.Y.1966).

The motion to eliminate issues is granted as to issues numbered 6 and 7, i. e., any claim that Martin-Marietta or Interchemical attempted to monopolize any part of interstate trade and commerce in sealing compounds or other products. Contract, Combination or Conspiracy to Restrain Trade Defendants’ motion to eliminate issues framed at least 14 issues which described in various ways claims of contract, combination or conspiracy which defendants thought plaintiff might be trying to assert.

Plaintiff stated it made every one of such claims, but it did not make complete specifications of its position with respect to any of them, and it refused to present its case for analysis on the basis of those issues. Eliminating purported statements of the law, the following is the totality of plaintiff’s statements with respect to contracts, combination or conspiracies in restraint of trade: “[The Presstite Division] combined, conspired, agreed or reached an understanding with such persons (and corporations) as George D.

Kite, Filón Plastics, Hastings Plastics, Elixir Paint and Lacquer, Jones Foundry, Yates and others, the effect of which was to attempt to exclude or excluded plaintiff as a competitor in the sale of Presstite materials.

See * * * Narrative, pages 38-48.” [which purports to describe the dealings between Presstite and the named persons and other persons who had been customers of plaintiff] (Supplemental Response, p. 5, lines 25-32, directed to Issue 8 respecting claims of conspiracy to monopolize.) “The same facts which support plaintiff’s claim of attempted monopolization and combination or conspiracy to monopolize support plaintiff’s claim of unreasonable restraint in violation of

Section 1 of the Sherman Act. See plaintiff’s statement in connection with Issues 6 and 8.” (Supplemental Response, p. 7, lines 5-10, directed to Issue 12 respecting claims of conspiracy unreasonably to retrain trade.) “Soon after plaintiff had purchased the Hubbard Company (and with the purchase, all rights enjoyed by Hubbard as an exclusive distributor of Presstite sealants, sealing compounds or other products) [the Presstite Division] began its campaign to eliminate plaintiff as a distributor of such products and to take over such business of plaintiff. See * * * Narrative, pages 19-22; pages 34-38.

It continued this predatory conduct (while giving lip service to a pretense that it meant to continue to do business on the best terms with Industrial Building Materials) until September 1963 when it firmly established its own ‘direct selling organization’- — after hiring George Kite away from plaintiff to head up the selling efforts in this ‘direct selling organization’.

See * * Narrative, pages 38-57. * * * The attempts to monopolize resulted in a complete monopoly of plaintiff’s business of selling Presstite products— when plaintiff was driven out of this business in September 1963.” [Portions segregating defendants omitted.] (Supplemental Response, p. 3, line 14 to p. 4, line 3, directed to Issue 6 respecting claims of attempt to monopolize.) “Plaintiff claims that Interchemical contracted, combined and conspired with George Kite in violation of both sections 1 and 2 of the Sherman Act.” [General cross-reference omitted.] (Supplemental Response, p. 9, lines 19-22, directed to Issue 20 respecting claims of conspiracy with George Kite.) “Most if not all of the persons listed in this issue [25, which named everyone to whom the Presstite Division sold anything and to which plaintiff referred in its Narrative or Appendices thereto] * * * were sold Presstite products at prices which discriminated against plaintiff.

Appendix A shows the prices and discounts for Presstite products to the persons listed. * * * The prices and discounts to the persons listed discriminate against plaintiff. Most of the persons listed were customers of plaintiff persuaded by [the Presstite Division] to purchase from [it] rather than plaintiff through the discriminatory prices offered to such customers. Plaintiff claims that the discriminatory prices utilized by [the Presstite Division] in winning away the business of Plaintiff’s customers were part

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