DOCKET NO.: 34
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Seventh Circuit
ARGUED: Feb 28, 1956
DECIDED: Jun 11, 1956
Facts of the case
Media for Sears, Roebuck & Company v. Mackey
Audio Transcription for Oral Argument - February 28, 1956 in Sears, Roebuck & Company v. Mackey
Number 34 Sears, Roebuck and Company versus Bruce A. Mackey.
Walter J. Rockler:
If it please the Court.
I am appearing for the petitionrs Sears, Roebuck and his Company.
It is agreeable to the Court, I propose to reserve about 10 minutes of my allotted time.
This case rises on a petition for certiorari to review the decision of the Circuit Court of Appeals for the Seventh Circuit which denied a motion to dismiss an appeal.
The motion was taken from an order of the trial court, the District Court to dismiss parts of a complaint.
That is the appeal that was taken.
The motion of the petitioner, sorted a lack of jurisdiction on the ground of a lack of the -- of meeting the requirements of Section 1291 of the Judicial Code.
The Court of Appeals below, relying upon the fact that an order in the form of Rule 54 (b) of the Federal Rules of Civil Procedure, had been entered by the District Court held that it was unnecessary to consider whether or not the requirements of Section 1291 were met undependable.
We believe that the court below, errored in its interpretation of Rule 54 (b) and misjudged the relationship of the Federal Rule, the Section 1291 of Judicial Code.
The background of this matter in detail is as follows.
The respondents, an individual and a corporation wholly controlled by the individual respondent, filed a complaint in the six counts against the petitioner.
Count I set forth the allege violations of the Sherman, Clayton and Robinson-Patman Act and demanded travel damages cost and permanent equitable relief.
This was the general antitrust count.
Count I in a specific allegation stressed the size and power of the petitioner, Sears, and charged that the petitioner had committed a series of individual wrong or tort against the respondents.
The Count I also charged that he was -- these were a part of a very general plan to drive the petitioner out of all businesses now and in the future.
Thus, paragraph 11 of Count I alleged, "Beginning in 1949 and continuing down to the date of the filling of this complaint, Sears has been engaged in a continuing attempt to destroy each and every business owned, controlled, or managed by Mackey.
And thereby, to punish Mackey for refusing to deal with Sears on terms dictated by Sears and to deter others from refusing to deal with Sears on terms dictated by Sears.
After several paragraphs of allegations with respect to specific wrong, paragraph 22, more or less, have the same thing.
All of the four set Acts and practices have been performed by Sears pursuant to its continuing plan to destroy each and every business in which Mackey has engaged or may attempt to engage.
In the subsequent counts by re-alleging the counts, the allegations of Count I singly or in combination, the respondents purported to multiply their clauses of actions or claims with respect to the number of laws violated, the claims themselves and of course the amount of damages.
Count II, thus, based almost entirely on cross references to specific paragraphs of Count I alleged unfair competition by the petitioner with a lamp business conducted by the respondent.
Count III, similarly based on cross references to Count I, charged interference with profitable contractual relation to the respondent.
Count IV, similarly established by cross reference to Count I, alleged unfair competition and we believe a possible patent infringement with respect to a tool business conducted by the respondents.
Count V, which originally charged Robinson-Patman the antitrust violations was abandoned by the respondent.
Count VI, which substantially reincorporated all of the fact to the allegations of the forgoing counts, charged an overall general tort of an attempt to destroy all businesses of the respondent.
Again, Count VI was based upon the notion of a plan linking together all of the specific episodes charged in paragraphs to Count I.
Upon the petitioner's motion in the trial court as amended to dismiss parts of the complaint, the trial court did dismiss Count I, II and part of Count VI without lead to amend.