BOWLES, Price Administrator, v. CABOT et al.

No. 117.Circuit Court of Appeals, Second Circuit.
January 30, 1946.

Page 259

Appeal from the District Court of the United States for the Southern District of New York.

Action by Chester Bowles, Administrator, Office of Price Administration, against John B. Cabot and Claire M. Cabot, individually and as trustees of the Cabot Investment Company, and others, for an injunction and damages for alleged violations of the Emergency Price Control Act. From a judgment of dismissal, Provisional Government of French Republic v. Cabot, 59 F. Supp. 855, plaintiff appeals.

Reversed and remanded.

Suit was brought by the Price Administrator for an injunction and to recover statutory damages from defendants for alleged violations of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 925(e), in the sale of a number of trucks to the Provisional Government of the French Republic. A similar suit founded in part upon the same transactions was also instituted against the same defendant by the Provisional Government. Pertinent portions of the Act read as follows:

“§ 205(a). Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 of this Act, he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond. * * * (e) If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. * * * If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer either fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States within such one-year period. * * *”

The complaint filed by the Administrator alleged that the defendant had sold and transferred certain commercial vehicles at prices above the established maximums and further alleged that “none of the transfers referred to * * * was made to a person or persons for use or consumption other than in the course of trade or business.” The complaint of the Provisional Government alleged that the vehicles were purchased by it for exportation to its colonies, and that they were bought for use and consumption other than in the course of trade or business.

Defendants made a separate motion to dismiss each complaint. Annexed to the

Page 260

motion papers addressed to the suit here, i.e., that brought by the Administrator, was a verified copy of the complaint filed by the Provisional Government. The District Court (stating in its opinion that it was denying the motion to dismiss the complaint of the Provisional Government) granted the motion as to the complaint of the Administrator on the grounds that the allegation that “none of the transfers referred to * * * was made to a person for use or consumption other than in the course of trade or business” was “a pure conclusion of law * * *” [59 F. Supp. 855, 857], that no facts were alleged in support therof, and that consequently the complaint failed to state a claim for which relief could be granted.

George Moncharsh, Deputy Administrator for Enforcement, David London, Chief, Appellate Branch, and Nathan Siegel, Special Appellate Atty., Office of Price Administration, all of Washington, D.C., and John Masterton, Regional Litigation Atty., of New York City, for plaintiff-appellant.

Clarence U. Carruth, Jr., of New York City (Bernard M. Kommel, Norman C. Wynroth, and Henry A. Stickney, all of New York City, of counsel), for defendants-appellees.

Before L. HAND, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

The verified complaint of the Provisional Government which was attached to the defendants’ motion to dismiss said (a) that the trucks were bought “for export to plaintiff’s colonies” and (b) for use or consumption other than in the course of trade or business.”

The possibility of treating the defendants’ motion to dismiss as a plea for summary judgment on the basis of the affidavit, in the form of the Provisional Government’s sworn complaint attached to the defendants’ motion papers was not urged upon us, nor was it considered by the court below. Had the motion been so treated, the question would then arise whether the allegations in the verified complaint were not so contradictory or ambiguous as to preclude relief in the form of a summary judgment. However, we do not feel that it is incumbent upon us to decide that question at this time.

Treating the motion to dismiss as one addressed simply to the sufficiency of the pleadings, it is apparent that the allegations of the Administrator’s complaint were sufficient under Rule 8(a) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The rule requires merely a “short and plain statement of the claim showing that the pleader is entitled to relief.” All that was necessary to show the Administrator’s standing to sue was a statement that the trucks had been purchased for use in the course of trade or business and that, consequently, the buyer was not a person entitled to bring the action, Bowles v. Glick Bros. Lumber Co., 9 Cir., 146 F.2d 566. That the Administrator chose to draw his complaint in the words of the statute is not objectionable.

The proper procedure would appear to be the consolidation of the two claims under Federal Rule 42(a), thereby avoiding any conflict between the alternative plaintiffs.

Reversed and remanded.

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