Opinion
October 28, 1933.
At Law. Action by the Carbonic Gas Company of America, Incorporated, against the Pure Carbonic Company of America, Liquid Carbonic Corporation, and others. On motion to dismiss the second alleged cause of action contained in the complaint on the grounds: (1) It does not allege any damage to plaintiff, and hence that plaintiff has not any locus standi herein; and (2) that it does not state sufficient facts to show any cause of action in plaintiff.
Motion granted, with leave to amend.
Nathan Friedman, of New York City, for plaintiff.
Beekman, Bogue Clark, of New York City, for defendants.
Motion granted, with leave to plaintiff to amend second cause of action within twenty days from entry of order hereon, and if not so amended within said time, the second cause of action is to be finally dismissed.
I. The locus standi of plaintiff in these two actions to maintain any action against the defendants under the Clayton Act, §§ 2 and 3, title 15 U.S.C. § 13 and 14 ( 15 USCA §§ 13, 14), must be based on damages suffered by the plaintiff, title 15 U.S.C. § 15 ( 15 USCA § 15). Cf. Jack v. Armour Co. (C. C. A.) 291 F. 741, 745; Gerli v. Silk Association of America et al. (D.C.) 36 F.2d 959, 960. See, also, Keogh v. Chicago N.W. R. Co., 260 U.S. 156, 163, 43 S. Ct. 47, 67 L.Ed. 183.
A plaintiff may not, therefore, assume the role of a deus ex machina for other parties and found a cause of action in its own favor on discrimination in violation of the Clayton Act as to such other parties.
II. Until the plaintiff in each of these causes by proper sworn allegations shows a damage to itself (or himself) by the alleged acts of the defendants, the other interesting questions raised by this motion remain moot.
Settle order on notice.