phrases "failure", "refusal", "delay", "in violation of
contract", and "favoring", defendants challenge their efficacy to
describe or constitute coercion or intimidation as contemplated
by the Act.
Compulsion is synonymous with coercion and means in general
some actual or threatened exercise of power possessed by the
parties exercising it; but coercion can be accomplished by
indirect means, as coercion which is implied from acts. Thus,
coercion and intimidation is not necessarily limited to exercise
of positive force or direct threats, but may result from any
pressure which puts one in actual fear of loss of property or
injury to business.
The court cannot categorize the questioned allegations as
failing to equate a standard of coercion and intimidation. By the
statutory definition alone, unfair and inequitable conduct may be
of such nature as to constitute coercion and intimidation. A
motion to strike should be sustained only where the allegations
bear no possible relation to the claim asserted, and should be
denied when there is doubt as to whether they raise an issue
under any contingency. For these reasons, the court is of the
opinion that defendant's motion to strike certain allegations
contained in Paragraph 38 of the complaint should be denied.
The court has considered defendants' motion to dismiss Count II
of the complaint for failure to allege a claim under the
anti-trust statutes. No facts, other than those relating to
defendants' conduct toward the plaintiff which have been
incorporated into Count II, are stated from which it can be
determined that the contemplated purpose, tendency and inherent
nature or result of the alleged conspiracy and combination was
that fewer automobiles moved in interstate commerce or that a
monopoly to destroy competition was effected or that it resulted
in harm to the public interest. The court is of the opinion
defendants' motion to dismiss this count should be sustained.
Defendants have also moved to dismiss Count III promised on
breach of contract for failure to allege a claim thereunder, or,
in the alternative to strike certain paragraphs therefrom. Said
motion asserts that subparagraphs (a) through (l), (n), (q), (s),
(u), (w) through (z), (bb) through (ee), and (jj) allege mere
legal conclusions and do not allege that the matters set forth
therein were a part of the contract between the parties; that
paragraphs (m), (o), (p), (r), (t), (v), (aa), (ff), (gg), (hh),
and (ii) fail to plead the terms of any contract between the
parties and plead legal conclusions; that Count III fails to
allege any facts showing a breach of an enforceable contract. A
motion to dismiss should be sustained only where it appears to a
certainty that the plaintiff would be entitled to no relief under
any state of facts which can be proved in support of its asserted
claim. The allegations of this count are sufficient to state a
claim under contract and the motions should be denied.
The court is also of the opinion that defendants' motion to
make the allegations concerning damage to plaintiff more definite
and certain should be overruled.
Defendants have filed objections to certain interrogatories
submitted to them by the plaintiff. Said objections are premised
on two grounds: (1) that they pertain to defendants' business
dealings with other dealers in the Chicago area; and (2) that
they ask defendant to state facts which plaintiff knows or can
ascertain from its own records.
The court is of the opinion that the objections of defendants
directed to category (2) should be overruled.
Defendants contend that interrogatories directed to dealings
with its other franchised dealers are irrelevant to the claim
alleged under the Automobile Dealers Act; that the basis of the
action thereunder relates only to actions between the parties to
the franchise and not to defendants' conduct with other
automobile dealers. The court is of the opinion that if the
alleged favored treatment to other dealers did in fact result or
directly cause the plaintiff to lose its
franchise, then defendants' alleged conduct toward others
directed in such manner as to create a loss of business to the
plaintiff is relevant. As the court has previously stated,
coercion may be implied from a course of conduct.
However, the plaintiff's interrogatories directed to this
category of information covers too wide a scope and are not
directed to elicit relevant information bearing upon the issues
here presented. The court is of the opinion the geographical
scope of these interrogatories should be limited to a sixty mile
radius from Valparaiso, where plaintiff's dealership was located,
and should also be limited to dealers of comparable size to the
plaintiff. Information regarding conduct toward the five largest
Dodge Plymouth dealers within a sixty mile radius from downtown
Chicago, whose sales volume, investment, and consumer demand are
not comparable, would have only a remote and speculative
application. The plaintiff should revise these interrogatories to
meet the limitations imposed by the court. In these
circumstances, the court will make no rulings at this time.
An order has this day been entered overruling defendants'
motion to strike certain allegations from Paragraph 38 of the
second amended complaint, sustaining defendants' motion to
dismiss Count II of the complaint, overruling defendants' motions
directed to Count III of the complaint, overruling defendants'
motion to make more definite and certain, and overruling
defendants' objections to the following interrogatories relating
to defendants' dealings with the plaintiff — 45, 46, 52, 53, 54,
55, 56, 57, 58, 59, 60 through 73, 82, 100, 109, 127, 128, 141,
142, 146, 160, 161, 167, 184, 185, 191, 212, 213, 215, 217, 218,
220, 221, 222, 223, 230, 231, 240, 241, 243, 245, 246, 248, 249,
250, 251, 258, 259, 271, 272, 281, 282, 288, 289, 301, 308, 309,
316, 317, 319, 322, 324, 326, 333, 337, 338, 342, 343, 347, 348,
350, 351, 353, 355, 357, 364, 368, 369, 373 and 374. Defendants
are given 60 days in which to make answer.
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