United States District Court, Northern District of Illinois, E.D
September 23, 1958
3963 BOTTLES, MORE OR LESS, OF AN ARTICLE OF DRUG LABELED IN PART: "60 CAPSULES LOT NO. 30019 ENERJOL DOUBLE STRENGTH * * *".
The opinion of the court was delivered by: Sullivan, District Judge.
This is a libel of information brought by the Government under
Title 21 U.S.C. § 334, for the condemnation of certain bottles of
a drug called "Enerjol". The condemnation is sought on the
grounds that the contents of the bottles are misbranded under
Sec. 352(a), and that "Enerjol" is a "new drug" under Section
355(a), as to which no effective application has been filed under
The claimant has moved to dismiss the libel and for a summary
judgment. The sole basis for the motion is that in September,
1957, Claimant entered into an agreement with the Post Office
Department in an action brought against claimant by that
Department under the provisions of Title 39 U.S.C. § 259 and
732, and allegedly concerned with the same product and same
labels as those here involved. It is claimant's position that in
view of the former proceedings, and the agreement, the present
libel subjects claimant to a "multiplicity of actions" and
"unjust harassment", and that the agreement in the post office
action is a bar "in effect akin to the legal principle of res
The last argument is clearly in error. The doctrine of res
only when there has been an actual adjudication of the same
issues in a prior proceeding. United States v. International
Building Co., 1953, 345 U.S. 502, 505, 73 S.Ct. 807, 97 L.Ed.
1182. Such is not the case here. In the Post Office proceeding,
the issue was actual intent to deceive by means of false or
fraudulent pretences (Reilly v. Pinkus, 1949, 338 U.S. 269, 276,
70 S.Ct. 110, 94 L.Ed. 63). Here, the issue is whether the
article is misbranded. It is settled in this Circuit that "the
offense of using the mails to defraud and the offense of
introducing or delivering for introduction into interstate
commerce misbranded drugs are not the same, and hence there is no
res judicata". United States v. Kaadt, 7 Cir., 1949,
171 F.2d 600, at page 605; see also United States v. 42 Jars etc.,
D.C.D.N.J. 1958, 160 F. Supp. 818, 821.
Claimant argues that he is not contending that the traditional
doctrine of res adjudicata applies, but that something "akin"
to it is involved. This argument also must fail. However far one
might stretch the traditional doctrine, it must at least involve
some form of prior adjudication definite enough to form a
standard against which the current action can be measured. In the
instant situation there was no adjudication of any sort in the
Post Office action. The agreement (attached to the motion) shows
that claimant there merely agreed to refrain from making certain
representations in the future. If this amounts to anything, it is
an admission by claimant against his interests in this suit.
Finally, the agreement provides that it "will not act as a
defense for violation of any other statute". This in itself
should preclude its use here.
The argument that claimant is being subjected to "multiplicity
of actions" and "undue harassment" is a specious one. It is
perfectly apparent that the purposes and effect of the Post
Office action and one for condemnation are entirely different and
that the two remedies are properly distinct and co-existent.
United States v. One Dozen Bottles, 4 Cir., 1944, 146 F.2d 361,
For the foregoing reasons, the motions to dismiss and for a
summary judgment are denied.
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