KLOEB, District Judge.
This matter comes before the Court on plaintiff's motion to strike from defendant's answer, and motion for a more definite statement.
Memoranda are filed in support of and in opposition to the motions as required by the rule.
In specification 1 of the motion to strike, plaintiff seeks to have stricken out, under Rule 12(f) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the phrase "as a sub-jobber".
Rule 8 provides, with reference to defenses:
Rule 12 (f) provides that upon a motion made by a party the court "may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter".
Paragraph 1 of the complaint and the corresponding paragraph of the answer, in which the objected to words appear, are as follows:
Complaint Answer 1. "That at all times between the "1. Denies the allegations of this 3rd day of April, 1941 and the date paragraph except that it admits at all of the filing of this complaint, the times between the 3rd day of April, plaintiff was engaged in the business 1941, and the date of filing of the of being a wholesale jobber of complaint the plaintiff was engaged books, printed publications and material in the business of selling books as published for resale or consumption a sub-jobber, and during said times by the general public, and was doing business under the name during said times was doing business and style of Edwin M. Reid, doing under the name and style of Edwin business during said time at 1825 M. Reid, doing business as College Collingwood Avenue, Toledo, Ohio; Book Exchange; and, plaintiff conducted 1114 Jackson Street, Toledo, Ohio; said business during said time and 4558 Monroe Street, Toledo, at 1825 Collingwood Avenue, Toledo, Ohio." Ohio; 1114 Jackson Street, Toledo, Ohio; and 4558 Monroe Street, Toledo, Ohio."
The same comment applies to specification 6, in which plaintiff seeks to have stricken out from paragraph 26 of the answer the words: "except that it admits that plaintiff has requested defendant to grant to him the same prices and terms as then being offered by defendant to its jobbers", following a general denial of the allegations of paragraph 26 of the complaint.
The motion of plaintiff for more definite statement, as an alternative to specification 1, asks the Court for an order requiring the defendant to make definite the meaning of the words "as a sub-jobber" in paragraph 1 of the first defense. We are of the opinion that this motion should be overruled, for the reason that under Rule 12 (e) a motion for a more definite statement may be made only to a pleading to which a responsive pleading is permitted, and under Rule 7 (a) a responsive pleading is not permitted to the answer unless ordered by the Court. The information desired may no doubt be obtained by interrogatory or other discovery means under the rules.
Specification 2 seeks to have stricken out paragraph 32 of the second defense, reading as follows:
This defense is based upon Sec. 2(d) of the Robinson-Patman Price Discrimination Act, Title 15, § 13 (d), U.S.C.A., reading as follows:
Plaintiff contends that the defense is insufficient in that the proviso in the statute states the payment or consideration for services or facilities furnished by customers shall be "available on proportionally equal terms to all other customers competing in the distribution of such products or commodities", whereas the language of the defense is that such payment "has been made available on proportionally equal terms to plaintiff." We are unable to agree with this contention, for the reason stated in the case of Midland Oil Co. v. Sinclair Refining Co., D.C.Ill.1941, 41 F.Supp. 436, at page 438, wherein the Court said:
It seems to us the gravamen of the complaint is that the plaintiff was not accorded by the defendant equal treatment with other customers of the defendant of the same class, and that it is immaterial to the issues here whether defendant made equal terms available to all other competing customers.
Specification 3 seeks to have stricken out paragraph 33 of the third defense, reading as follows:
This defense seems to be pleaded in the language of the statute, Title 15, § 13 (b), reading as follows:
In the case of Standard Oil Co. v. Federal Trade Commission, 1951, 340 U.S. 231, 71 S.Ct. 240, 248, 95 L.Ed. 239, the Court held:
It seems to us that this specification should be overruled.
In specification 4, plaintiff seeks to have stricken out the defense of res adjudicata set forth in paragraph 34 of the fourth defense, reading as follows:
It seems to us whether or not the defense of res adjudicata is a good defense in this case depends upon evidence as to the issues involved and the determination made in the prior action, and perhaps other matters of evidence, and that the question cannot be determined upon this motion.
In specification 5, plaintiff seeks to have stricken out paragraph 35 of the fifth defense, involving the statute of limitations of Ohio which may be applicable, reading as follows:
This action is brought under the Robinson-Patman Act, 15 U.S.C.A. § 13 et seq., which imposes both civil and criminal sanctions for violation, the civil liability to the person aggrieved being one for treble
No reference is made in this statute as to the period of limitations for bringing such actions, and it is conceded that reference must be had to the law of the forum to determine this question. Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241.
The two relevant sections of the General Code of Ohio establishing a statute of limitations are the following:
The problem for determination is whether the liability imposed by Section 4 of the Clayton Act is one for a "penalty or forfeiture", as those terms are defined in Ohio law.
Under the holding of the Supreme Court in Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and the later cases of Six Companies of California v. Joint Highway District, 1940, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114, West v. American Tel. & Tel. Co., 1940, 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139, Stoner v. New York Life Ins. Co., 1940, 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284, it is the duty of the Federal Court to ascertain the State law from all available sources and to follow the rule announced by the Supreme Court of the State or an intermediate State Court, while in Fidelity Union Trust Co. v. Field, 1940, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109, the Court held that the Federal Court of New Jersey was bound to follow the decisions of the New Jersey Court of Chancery, a trial court. The question also came up in King v. Order of United Commercial Travelers of America, 1948, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608, in which the Supreme Court granted certiorari in order to determine whether the Circuit Court of Appeals' refusal to follow the only South Carolina decision directly in point, a decision of a Court of Common Pleas, was consistent with the Rules of Decision Act as applied in Erie R. Co. v. Tompkins, and the Court there held that (Syl.):
The Court said 333 U.S. at page 158, 68 S.Ct. at page 491:
The Court pointed out in the Fidelity case that the status of the New Jersey Court of Chancery was not that of the usual nisi prius court; that it had state-wide jurisdiction; that its standing on the equity side was comparable to that of New Jersey's intermediate appellate courts on the law side; and that chancery decrees were ordinarily treated as binding in later cases in chancery. 333 U.S. at page 159, 68 S.Ct. 488.
In concluding, the Court said that it was
It is the further contention of counsel for defendant that the statutes of Ohio have characterized as a "penalty" a liability created by statute in favor of an aggrieved person where the liability was greater than the actual damages suffered; and that, where the statute has not employed the words "penalty" or "forfeiture" the Ohio Courts have consistently construed such statutes as imposing a penalty.
It is the contention of counsel for plaintiff that the cause of action sued on in this case is for a "liability created by statute" rather than for a "penalty", and reliance is had principally upon the case of Hocking Valley R. Co. v. New York Coal Co., 6 Cir., 1914, 217 F. 727.
It is not disputed that a suit to recover triple damages for alleged violation of the Robinson-Patman Act is an action upon a liability created by statute, and that an action to recover a penalty or forfeiture provided by statute is also upon a liability created by statute. The question remains, under the applicable law of Ohio, is the cause of action here sued upon "a penalty or forfeiture", and therefore barred after one year under Sec. 11225, G.C.O., or is it a "liability created by statute other than a forfeiture or penalty", and therefore not barred until after six years under Sec. 11222, G.C.O.?
No Ohio case has been cited which directly passes upon this question, but counsel for defendant in this case and in the case of the plaintiff versus Prentice-Hall, Inc., No. 6797, in which the same question has been raised, contend that a suit for treble damages under the Federal antitrust laws should be construed as an action upon a statute for a "penalty or forfeiture" within the meaning of Sec. 11225, G.C.O., on the ground that it is punitive in its nature since it permits the recovery of three times the damage sustained as punishment for the wrong done and as a deterrent to the continuation of any activity by the wrongdoer which violates the Federal antitrust laws, and that, in view of the decisions of the Ohio courts in cases
Cases under the antitrust law of Ohio, known as the "Valentine Act", Secs. 6390-6402-1, G.C.O., which permits the recovery of double damages for violation of the law: List v. Burley Tobacco Growers Coop. Ass'n, 1926, 114 Ohio St. 361 at pages 361, 378, 151 N.E. 471, 476, referring to the "penalizing and punishing" effect of the law; Foster v. Ankenbauer, C. P. Hamilton Co., 1913, 14 Ohio N.P.N.S., 637, 640, referring to the damages under the law as "in the nature of a penalty"; Merkel v. Maybaugh, C. P. Tuscarawas County, 1945, 33 Ohio O. 284, 286, referring to "punitive damages" and "penalty" under the law; Gildehaus Co. v. Busse, C. P. Hamilton Co., 1916, 19 Ohio N.P. N.S. 263, at page 264, referring to "the penalty" provided in the law; and Barron, Boyle & Co. v. Pittsburgh Plate Glass Co., Sup.Ct.Cincinnati 1900, 7 Ohio N.P. 528, referring to the action as being one to recover a "penalty".
A case under the Public Utilities Act: Warner v. Baltimore & O. Railway Co., C. P. Cuyahoga Co., 1911, 11 Ohio N.P. N.S. 487, 489, in which the Court referred to the case as an "action to recover treble damages" under the Public Utilities Act of Ohio, now Secs. 614-1 to 614-68 G.C.O., and stated that plaintiff was seeking "punitive damages". The section of the statute, § 614-65, G.C.O., providing, in case of violation, for a fine of not less than $100 nor more than $1,000, or imprisonment for not more than two years, or both, for each day the offense continues, is headed "Penalty", while Sec. 614-68, G.C.O. provides for the recovery of treble damages by the person injured in consequence of the violation, stating that any recovery under that section "shall in no manner affect a recovery by the state for any penalty" provided in the Act, and is headed "Treble damages on violations".
Railroad cases: The statute involved in these cases provided, in case of overcharge for freight or passenger transportation, for the recovery of double the amount of the overcharge but not less than $150. The case of Cincinnati S. & C. Railroad Co. v. Cook, 1881, 37 Ohio St. 265, 270, referred to the amount of recovery sought over the actual damage as being "in the nature of a penalty" and "punishment rather than compensation"; Railway Co. v. Furnace Co., 1892, 49 Ohio St. 102, 115, 30 N.E. 616, which referred to the judgment as being for a "penalty" and, therefore, not entitled to interest; Cleveland, C. & St. L. Railway Co. v. Wells, 1899, 61 Ohio St. 268, 270, 55 N.E. 827, which referred to the statute as "highly penal"; Baltimore & O. Railroad Co. v. Hollenberger, 1907, 76 Ohio St. 177, 179, 81 N. E. 184, in which the Court dismissed an action to recover the overcharge, stating that the action was one to recover "a penalty" and had not been filed in the County where the cause of action arose, the Ohio statute in effect at that time providing that an action to recover a penalty, with certain exceptions, had to be brought in the County where the cause of action arose; Pennsylvania Co. v. O'Connell, 84 Ohio St. 218, 95 N.E. 773, which referred to the action as being one for the recovery of "a penalty" which must be brought in the County where the cause of action arose, and also referred to but did not pass upon the one year statute of limitations applicable to a penalty.
Defendant also cites DeWitt v. State ex rel. Crabbe, 108 Ohio St. 513, at page 527, 141 N.E. 551, at page 555, involving the construction of Sec. 1465-74 of the Workmen's Compensation Act of Ohio, providing for the recovery in an action in the name of the State of the amount of an unpaid award, together with a 50% penalty, in which the Court referred to the "added penalty of 50 per cent", as a "penalty pure and simple", stating that "The statute so denominates it, and the
Counsel for defendant also cited certain statutes of Ohio as examples of statutory construction placed upon the word "penalty"; Sec. 8623-127, caption "Penalty for failure to comply with certain requirements", which provides that a stockholder may recover from a corporation a penalty of $100 and a further penalty of $10 for every day the corporation is in default or furnishing a certified copy of a statement of profit and loss and a balance sheet; Sec. 12181 and Sec. 12182, relating to habeas corpus proceedings, which are captioned, respectively, "Penalty upon clerk for refusal to issue the writ" and "Penalty for disobeying the writ"; Sec. 11193 (repealed) which was headed "Penalty", providing for a penalty for the issuing of a marriage license by a judge without following the statutory requirements.
Defendant also cites cases brought to recover gambling losses under the Ohio statutes permitting the recovery by the loser, or a person dependent upon him, or other person, Secs. 5966-5969, G.C.O. for the amount of the loss with exemplary damages of not less than $50 nor more than $500; Cooper v. Rowley, 29 Ohio St. 547; Harrington v. Halliday, 4 Ohio N.P.N.S. 281; Paul v. Groene, 17 Ohio Dec. 738, and Worland v. Emerine, 1927, unreported dec., C. A. Lucas Co., Vol. 33, p. 187.
The case of Cooper v. Rowley, supra, was an action brought by the plaintiff to recover gambling losses under the statutes brought more than three and one-half years from the time of the loss, in which the Court held that the legislature, by the language of the Act, "intended and regarded the same to be recovered as a penalty or forfeiture", and that the one year limitation of Sec. 11225, G.C.O. applied.
Defendant also cites the civil rights statute of Ohio, secs. 12940 and 12941, G.C. O., and the case of Loftin v. Loew's, Inc., 75 Ohio App. 448, 62 N.E.2d 535. Sec. 12940 is headed "Penalty for Denial of Privileges at Inns and Other Places by Reason of Color or Race", and Sec. 12941 is headed "Further Penalty". The Court in Loftin v. Loew's, Inc., supra, held that the liability provided in Sec. 12941, G.C.O. is a "penalty" as that word is used in Sec. 11225, G.C.O., the one year statute of limitations.
Counsel for defendant also cite Ewing v. Toledo Sav. Bk., 43 Ohio St. 31, 1 N.E. 138, in which the Court held that the forfeiture of usurious interest must be regarded as a "penalty", the statute involved, 72 O.L. 186, containing the clause "and shall be subject for the violations thereof to the same penalties as natural persons".
Further cases cited by counsel for defendant are: Lawler v. Burt, 1857, 7 Ohio St. 340, 345, where the Court said that the provision of law making every stockholder, shareholder or partner individually liable for the whole amount of bonds, bills, notes, etc., of the bank "cannot be regarded as contemplating anything more than the imposing of a penalty to the amount of the bond or note issued upon the stockholder, shareholder or partner"; State v. Kelly, 1877, 32 Ohio St. 421, 431, an action on a bond given by the County Treasurer under a statute which made him liable to an action on his bond for the use of a county in double the amount for which he was liable under the statute, in which the Court held that it was an action upon the bond and that the limitation of ten years applicable to bonds was the proper one rather than the one year statute, stating that the statute which gives the right of action "does not give a penalty or forfeiture against the Treasurer".
It would not seem that any of the above cases or references can be said to establish the law of Ohio applicable to this case, but it would rather appear that the controlling law of Ohio is set forth in the
This case does not seem to have been cited in any of the Ohio cases referred to above, but the rule announced is in line with the decisions in the cases of Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123; Brady v. Daly, 175 U.S. 148, 20 S.Ct. 62, 44 L.Ed. 109; Hocking Valley R. Co. v. New York Coal Co., 6 Cir., 1914, 217 F. 727; Sullivan v. Associated Bill Posters & Distributors, 2 Cir., 1925, 6 F.2d 1000, 42 A.L.R. 503; Fields v. Washington, 3 Cir., 1949, 173 F.2d 701; City of Atlanta v. Chattanooga Foundry & Pipe Co., C.C.Tenn.1900, 101 F. 900, 906, Id., 6 Cir., 127 F. 23, Id., 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241, in which the Court cited, Pittsburgh, Ft. W. & C. Railway Co. v. Methven, supra, and stated:
In the opinion of the Sixth Circuit Court of Appeals in the case, the Court stated on this subject:
The Supreme Court in this case, 203 U.S. 390, 27 S.Ct. 65 affirmed the Court of Appeals,
The Sixth Circuit Court of Appeals, in the case of Bowles v. Farmers National Bank, 1945, 147 F.2d 425, 429 also recognized the distinction above referred to, where it stated:
As to the rule of construction to be followed to the statutes of limitation of Ohio involved in this case, it seems to us that the law is well stated in the syllabus of Crawford County Tr. & Svgs. Bk. v. Crawford County, 8 Cir., 1933, 66 F.2d 971:
The case of Hocking Valley R. Co. v. N. Y. Coal Co., 6 Cir., 1914, 217 F. 727, 730, supports the contention of the plaintiff in this case on this point. The Court there held that the cause of action, based on a violation of the statute of the State of Ohio requiring railroad companies to give equal treatment to shippers of the same class and provided that the injured party may recover his damages sustained but that the amount should not be less than $500, was one created by statute and subject to the six year limitation of Sec. 11222, G.C.O.
A number of Federal Courts have had occasion to consider the question here as to whether an action for triple damages under the Federal Antitrust Act was a "penalty or forfeiture" or "a liability created by statute". The majority have held that it was not an action for a penalty but rather for a liability created by statute. Shelton Electric Co. v. Victor Talking Machine Co., D.C.N.J.1922, 277 F. 433; Seaboard Terminals Corp. v. Standard Oil Co., D.C.N.Y.1938, 24 F.Supp. 1018; Hansen Packing Co. v. Swift & Co., D.C.N.Y.1939, 27 F.Supp. 364; Momand v. 20th Century Fox Film Corp., D.C.Okl.1941, 37 F.Supp. 649; Momand v. Universal Film Exchange, D.C.Mass.1942, 43 F.Supp. 996; United West Coast Theatres Corp. v. South Side Theatres, D.C.Cal.1949, 86 F.Supp. 109; Christensen v. Paramount Pictures, D.C. Utah 1950, 95 F.Supp. 446; Levy v. Paramount Pictures, D.C.Cal.1952, 104 F.Supp. 787; Dipson Theatres v. Buffalo Theatres, D.C.N.Y.1948, 8 F.R.D. 86; Sullivan v. Associated Bill Posters & Distributors, 2 Cir., 1925, 6 F.2d 1000, 42 A.L.R. 503; Burnham Chemical Co. v. Borax Consolidated, 9 Cir., 1948, 170 F.2d 569.
Contra: Harvey v. Booth Fisheries Co., D.C.Wash.1915, 228 F. 782; Haskell v.
It is our conclusion that under both the Ohio law and the Federal law the cause of action here sued upon is remedial rather than penal and that Sec. 11222, G.C.O. governs.
Specification 5 of the plaintiff's motion is sustained.
An order may be drawn accordingly.