Howard D. Potter, Appellant, v. Carvel Stores of New York, Inc., a Corporation of the State of New York, Carvel Corporation, a Corporation of the State of New York, Carvel Dari-freeze Stores, Inc., a Corporation of the State of New York, and Chain Locations of America, Inc., a Corporation of the State of New York, Appellees, 314 F.2d 45 (4th Cir. 1963)Annotate this Case
Argued January 22, 1963
Decided January 24, 1963
Arnold Fleischmann, Towson, Md. (Lawrence I. Weisman, and Nyburg, Goldman & Walter, Baltimore, Md., on the brief), for appellant.
Herbert F. Roth, New York City (Amen, Weisman & Butler, New York City, and Smith & Harrison, Towson, Md., on the brief), for appellees.
Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.
The plaintiff in this antitrust action appeals from a denial of a motion to enjoin an action by one of the defendants in a state court to collect unpaid rental upon real estate sublet to the plaintiff, and for an order of ejectment. The plaintiff is not now, and for some time has not been, using the property, but contends it is entitled to prevent the lessor's repossession of the premises because of the plaintiff's unverified allegations of fraud in the procurement of the sublease and related agreements and of claimed violation of the antitrust laws.
Under the circumstances more fully disclosed in the opinion of the District Judge,* and for the reasons stated by him, we think that the refusal to enjoin the state court proceedings is unassailable on appeal. If he might have granted the injunction, denial of the motion was certainly within the range of the discretion lodged in him and is consistent with the principle of Kelly v. Kosuga, 358 U.S. 516, 79 S. Ct. 429, 3 L. Ed. 2d 475.