The opinion of the court was delivered by: Marovitz, District Judge.
Motions of Defendants to Dismiss and for Judgment on the
This is a civil antitrust action in which plaintiffs seek to
recover treble damages for injuries resulting from an alleged
violation of the Sherman Anti-Trust Act, 15 U.S.C. § 1-7, 15.
Plaintiff, Premier Electrical Construction Company and
defendant St. Arnaud Electrical Company are direct corporate
competitors engaged in the electrical construction business.
Defendant Miller-Davis is in the general contracting business. On
February 3, 1966, the Atomic Energy Commission sent invitations
to various general contractors, including defendant Miller-Davis,
to submit bids for an addition to the Argonne National
Laboratory, Argonne, Illinois. The project was known as the
Accelerator Improvement ZGS, FY-65 Meson Building Addition. In
order to prepare their bids, the general contractors, including
Miller-Davis, then sent invitations to various electrical
sub-contractors, including Premier Electrical Construction
Company, requesting bids on the electrical work to be performed
on the Argonne project.
Plaintiff alleges that sometime between January 15, 1966, and
March 3, 1966, a conspiracy arose between Miller-Davis and St.
Arnaud such that Miller-Davis would induce St. Arnaud's
competitors, including plaintiff, to submit inflated bids to the
competitors of Miller-Davis, thereby insuring a successful bid by
Miller-Davis and a sub-contract for St. Arnaud. Plaintiff claims
that on March 3, 1966, it submitted its bid by telephone to
Miller-Davis, was advised that it was the low bidder and,
assuming that Miller-Davis was awarded the prime contract, that
it, Premier, would be awarded the electrical sub-contract on the
condition that it would "protect" Miller-Davis by submitting
artificially inflated bids to other general contractors.
In its complaint (¶ 12), plaintiff acknowledges that it agreed
to "protect" Miller-Davis if Miller-Davis would inform plaintiff
of its receipt of a lower bid by a third party so that plaintiff
could rebid to defendant's competitors. Miller-Davis did not
advise plaintiff of any competitive bid on the electrical
sub-contract. Plaintiff did submit high bids to general
contractors other than Miller-Davis. The Atomic Energy Commission
awarded the contract to Miller-Davis who then gave the
sub-contract to defendant St. Arnaud.
On October 13, 1966, in another District Court for the Northern
District of Illinois, Eastern Division, plaintiff filed a suit
against Miller-Davis entitled Premier Electrical Construction Co.
v. Miller-Davis Co., Civil Action No. 66 C 1850. Plaintiff's
amended complaint in that case set forth basically the same facts
alleged in the present suit, save for the purported involvement
of St. Arnaud. The language of the amended complaint in the first
suit is virtually identical to that recited in the instant issue,
especially in those paragraphs which relate to the agreement to
"protect" Miller-Davis. The original action sought $40,000 for
breach of contract. Trial ended on March 27, 1968, and the case
was taken under advisement. A decision is expected to be rendered
shortly.*fn* In the present complaint, filed March 4, 1968,
plaintiff claims deprivation of profits amounting to $65,000 as
its damages and seeks an award of treble damages under
15 U.S.C. § 15.
Defendant Miller-Davis has moved to dismiss the present suit on
the grounds of res judicata and in pari delicto. Defendant
St. Arnaud seeks a judgment on the pleadings based on the
doctrine of in pari delicto. Defendants admit plaintiff's
factual allegations regarding the contract and sub-contract
for the limited purpose of making their motions.
Because its first suit is based on contract while the present
case stems from an alleged violation of the Sherman Act,
plaintiff suggests that the respective causes of action are
"totally separate and distinct in every respect." (Brief at 3).
This argument is not well taken. It is the facts in each case,
not the theories, which are crucial in determining the
applicability of res judicata. Wolcott v. Hutchins, 245 F. Supp. 578
(S.D.N.Y. 1965), aff'd 365 F.2d 833 (2d Cir. 1966). Both of
plaintiff's suits arise out of the same operative facts and
disputed transactions the end result of which was the failure of
plaintiff to secure the electrical sub-contract from
Miller-Davis. The mere addition of a new, federal theory will not
support new litigation.
The closest case in point to the one at bar is Norman Tobacco &
Candy Co. v. Gillette Safety Razor Co., 295 F.2d 362 (5th Cir.
1961). In that case as here, plaintiff first filed a contract
action and later sought relief in a civil antitrust suit. Both
cases were based on the same refusal of defendant to deal with
the plaintiff. The Court of Appeals for the Fifth Circuit held
the former case to be res judicata of the later one. The Court
said at 363-364,
"It is settled, contrary to appellant's contention,
that a litigant may not split his claim and have two
trials on the same alleged breach of duty. Basically,
Norman claimed the same `right' in both suits — the
right to purchase Gillette products directly from
Gillette. The only wrong charged against Gillette was
its refusal to continue to deal with Norman. We held
in the contract case that Norman had not shown that
Gillette wrongfully refused to deal with it. There,
appellant relied upon the breach of Gillette's
supposed contractual relationship as the basis of its
claim. Here, appellant relies upon the breach of the
anti-trust laws as the basis for the alleged breach.
But there was but one breach and one only and
appellant has had its day in court and has lost. It
cannot litigate this same breach again. (Citing
Plaintiff relies on Engelhardt v. Bell & Howell Co.,
327 F.2d 30 (8th Cir. 1964) and Baltimore S.S. Co. v. Phillips,
274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1927). In Engelhardt,
however, a decision in an earlier suit under Missouri antitrust
law was held to be res judicata in the later suit brought under
federal antitrust statutes despite the incorporation of more
specific allegations of interference in interstate commerce and a
prayer for a different amount of damages. A plaintiff must plead
his entire case on all theories at one time. Baltimore S.S. Co.
v. Phillips, 274 U.S. 316, 320, 47 S.Ct. 600, 71 L.Ed. 1069
(1927); Engelhardt v. Bell & Howell Co., 327 F.2d 30, 33 (8th
Cir. 1964). This plaintiff has not done. In fact, Premier filed
the present suit within a few weeks prior to the trial of its
original suit against Miller-Davis.
Nor will a change in parties necessarily affect the
applicability of res judicata. See, e.g., Baltimore S.S. Co. v.
Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1927). In
Koblitz v. Baltimore and Ohio Railroad Co., 164 F. Supp. 367
(S.D.N.Y. 1958), the Court held that a new charge of conspiracy
in a second suit brought by plaintiff against defendant was not
sufficient to preclude the application of res judicata in the
second case. The Court said, at 372,
"Here the wrongs complained of, the harm to the
plaintiff and the recovery sought are substantially
identical. The same witnesses and the proof of the
same facts would be necessary to establish the
allegations of ...