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PREMIER ELECTRICAL CONSTRUCTION CO. v. MILLER-DAVIS CO.

September 16, 1968

PREMIER ELECTRICAL CONSTRUCTION COMPANY, PLAINTIFF,
v.
MILLER-DAVIS COMPANY AND ST. ARNAUD ELECTRIC COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

Motions of Defendants to Dismiss and for Judgment on the Pleadings

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 negotiations 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
  cases)."

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 ...

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