The opinion of the court was delivered by: LA Buy, District Judge.
The complaint herein is brought to enjoin defendants from
selling products of the plaintiff at less than the prices
established by fair trade contracts entered into by the
plaintiff with distributors and retailers in the State of
Illinois, and to recover the costs of this suit. Jurisdiction
is premised on alleged diversity of citizenship and presence
of requisite jurisdictional amount.
The defendant, Awon Liquor Store, Inc., has filed its motion
to dismiss the complaint for the reason (1) the three
defendants in this action are separate and independent, there
is no allegation that there is any concert of action between
them, and the jurisdictional amount must be present as to each
that the sales of this defendant of which plaintiff complains
were made on December 16, 1952 and February 5, 1953 when
one-fifth of Calvert Reserve was sold for $3.90 and $3.89,
respectively, whereas the fair trade price was $4.25; and (2)
the adherence to the price schedules of the plaintiff
constitutes a violation of the Sherman Antitrust Act, 15
U.S.C.A. § 1 et seq., and the Miller-Tydings Act, 15 U.S.C.A. §
45 et seq. This latter point has not been urged by the
defendants and the sole issue is whether or not jurisdictional
amount is present in the instant suit.
The complaint herein proceeds against these defendants for
their separate and individual violations at different times of
prices set by fair trade contracts. It does not purport to
proceed on the theory of a concert of action. Sanction for
this type of joinder is found in Rule 20(a), Fed.Rule
Civ.Proc., 28 U.S.C.A. No claim is made by defendants that
there is a misjoinder of parties defendant in this case, and
under the allegations of the complaint and Rule 20(a), the
joinder is proper.
However, where separate and distinct claims against separate
individuals are joined under Rule 20, the jurisdictional
amount must be present as to each defendant, and the claims
cannot be aggregated to make up the jurisdictional amount.
Clay v. Field, 1890, 138 U.S. 464, 479, 11 S.Ct. 419, 34 L.Ed.
1044; Fechheimer Bros. v. Barnwasser, 5 Cir., 1945,
146 F.2d 974. The presence of jurisdictional amount in injunction suits
is the value of the right to be protected. Glenwood Light,
etc. Co. v. Mutual Light etc. Co., 1915, 239 U.S. 121, 127, 36
S.Ct. 30, 60 L.Ed. 174. It is not the extent of the monetary
loss or damage which has been suffered or is threatened by
invasion. In Old Dearborn Distributing Co. v.
Seagram-Distillers Corp., 1936, 299 U.S. 183, 193, 57 S.Ct.
139, 144, 81 L.Ed. 109, the court said regarding the Fair
Trade Act of Illinois:
"The primary aim of the law is to protect the
property — namely, the good will — of the producer,
which he still owns."
See also Caron Corp. v. Wolf Drug Co., D.C., 1941, 40 F. Supp. 103.
The measure of jurisdictional amount in the instant case,
therefore, is not the difference between the fair trade price
and the sale price which defendants collected, but the value
of the property right the plaintiff possesses in the good will
of its product. The complaint sets forth in paragraph 4
thereof the expenditure of monies by the plaintiff to
establish that good will through advertising. To preserve that
good will the fair trade contracts were made. From the
allegations of the complaint, therefore, the court is of the
opinion that it sufficiently alleges the presence of the
requisite jurisdictional amount.
The defendant's motion to dismiss the complaint for lack of
jurisdictional amount is overruled. An order in accord
therewith has this day been entered.
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