The opinion of the court was delivered by: LA Buy, District Judge.
In an opinion reported as Jewel Tea Co. v. Local Unions, etc.,
274 F.2d 217 (7th Cir., 1960) the complaint in this case survived
defendants' attack. That opinion, describing the nature of this
action, also examines significant elements of the complaint. It
should, however, be noticed that the Court of Appeals was simply
evaluating and testing pleadings on an interlocutory appeal.
After affirmance and remand, various defendants filed answers and
this cause proceeded to trial on the merits before the Court,
sitting without a jury.
When the plaintiff rested, after introducing parol and
documentary evidence, Charles Bromann and Associated Food
Retailers of Greater Chicago, Inc., defendants, moved to dismiss
this action (T. p. 594). At the same time another motion was made
to dismiss the complaint on behalf of the defendant Unions, their
named officers, and representatives (T. p. 622). These motions,
it is assumed, were interposed under the authority of Rule 41(b),
Fed.R.Civ.P., providing, in part relevant here: "* * * After the
plaintiff has completed the presentation of his evidence, the
defendant, without waiving his right to offer evidence in the
event the motion is not granted, may move for a dismissal on the
ground that upon the facts and the law the plaintiff has shown no
right to relief. In an action tried by the court without a jury
the court as trier of the facts may then determine them and
render judgment against the plaintiff or may decline to render
any judgment until the close of all the evidence. If the court
renders judgment on the merits against the plaintiff, the court
shall make findings as provided in Rule 52(a). * * *."
Plaintiff grounds its action on 15 U.S.C. § 15, which provides:
"Any person who shall be injured in his business or property by
reason of anything forbidden in the anti-trust laws may sue
therefor in any district court of the United States in the
district in which the defendant resides or is found or has an
agent, without respect to the amount in controversy, and shall
recover threefold damages by him sustained, and the cost of suit,
including a reasonable attorney's fee." (Emphasis supplied). Of
course, at this stage of the case disposition of defendant's
several motions turns upon the state of the plaintiff's evidence
in this record. See, e.g., Penn-Texas Corporation v. Morse,
242 F.2d 243 (7th Cir., 1957), Allred v. Sasser, 170 F.2d 233, 235
(7th Cir., 1948).
Jewel has clearly established existence of union contracts
under which this plaintiff is prevented from selling meat and
meat products before 9:00 A.M. or after 6:00 P.M., Mondays
through Saturdays, in its Chicago area stores. Moreover, such
meats, if plaintiff were permitted so to do, would be sold
pre-packaged via a self-service system.
Turning now to the defendants Associated Food Retailers of
Greater Chicago, Inc., and Charles H. Bromann, Associated is a
trade association "consisting of `several thousand individual or
independent food stores engaged in the retail sale of meat for
human consumption in the Greater Chicago area.'" Jewel Tea Co. v.
Local Unions, etc., 274 F.2d 217, 222 (7th Cir., 1960). Bromann
is allegedly the Secretary and Treasurer of Associated. But the
gist of the complaint is that there is and has been a conspiracy
among and between Bromann, Associated, and the defendant Unions.
Yet, there is wanting any evidence
in this record tying in Associated and Bromann as conspirators.
Bromann apparently conducts collective bargaining for and on
behalf of Associated, which enjoys the industry wide contract.
From 1957 Jewel sought exclusion of the restriction on night
sales, and the Union bargaining group resisted (T.P. 122). And
the rest of the Industry agreed with the defendant Unions to
continue the ban on night operations (T.P. 122). Yet,
realistically speaking, there is absent any evidence showing
Bromann or Associated, or both, conspired with the defendant
Unions in forcing the restrictive clause upon Jewel. One would be
pyramiding inferences upon inferences in order to find such as a
Jewel's chief evidence was adduced through R. Emmett Kelly,
called as an adverse witness, who is assistant business
representative for Local 546. Kelly's testimony shows Union
activity and is devoid of any significant mention of Bromann and
Associated. Moreover, neither of those two defendants is a
signatory on the Union Contracts received in evidence.
Accordingly, the motion interposed by Bromann and Associated is
Since Jewel has sought relief from the defendant Unions apart
from the theory of conspiracy, the court now denies the defendant
Unions' motion to dismiss the complaint.
Counsel shall prepare suggested findings of fact and
conclusions of law as provided in Rule 52(a) for that portion of
the case wherein the motion of defendants Bromann and Associated
has been sustained. Such findings shall also contain therein an
express determination that ...