Premier Industrial Corporation, a Corporation v. Roy A. Marlow, an Individual , 512 F.2d 1379 ( 1975 )

512 F.2d 1379

PREMIER INDUSTRIAL CORPORATION, a corporation, Plaintiff-Appellant,
v.
Roy A. MARLOW, an Individual, Defendant-Appellee.

No. 74-4070 Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

May 21, 1975.

W. Eugene Rutledge, Birmingham, Ala., for plaintiff-appellant.

Drayton Nabers, Jr., W. Stancil Starnes, Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama, Seybourn H. Lynne, Judge.

Before WISDOM, BELL and CLARK, Circuit Judges.

PER CURIAM:

1

For the facts underlying this present action for damages and declaratory relief see our decision in the companion case styled C & C Products, Inc. v. Fidelity and Deposit Co., (5th Cir.) 512 F.2d 1375, announced today. In that action, C & C sought damages under an injunction bond posted by its competitor, Premier Industrial Corp. (Premier), with Fidelity acting as surety thereon, for the wrongful suing out of a state court injunction restraining C & C and Roy A. Marlow, its district sales manager, from engaging in alleged unlawful competitive practices. This court affirmed a jury award of 16,326.06 dollars.

2

After C & C filed suit in federal district court against Fidelity, Premier brought this suit for declaratory judgment against Roy A. Marlow asserting that he would bring a similar suit for damages, and seeking damages for an alleged conspiracy between Marlow and C & C to pirate Premier employees and for breach of fiduciary duty. The district court dismissed Premier's claim holding that litigation of Marlow's and C & C's alleged unlawful activities was barred by the doctrine of res judicata and that declaratory judgment was improper since Premier had failed to show an 'actual threat' of litigation. We affirm.

3

Premier's challenge to application of the doctrine of res judicata under the facts of this case is adversely controlled by our holding in C & C Products, Inc. v. Fidelity and Deposit Co., supra.

4

Premier's secondary contention, that denial of declaratory relief was improper, falls with the affirmance of the first point.

5

Affirmed.

6

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* Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y. et al., 5th Cir. 1970, 431 F.2d 409, Part I.