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

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. Before WISDOM, BELL and CLARK, Circuit Judges. 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. [MAJORITY — PER CURIAM:] PER CURIAM: 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. 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. 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. Premier’s secondary contention, that denial of declaratory relief was improper, falls with the affirmance of the first point. Affirmed.