(concurring).
I concur in the opinion as written. However, I wish to add that, in my view, the result would be the same (reversal and remand without reaching the merits) if the judgment is deemed responsive to an ordinary motion to dismiss under Rule 12(b) (6), rather than to a motion for summary judgment.
If the court intended to grant a regular Rule 12(b) (6) motion to dismiss then it erred because:
(1) the court took into consideration facts not alleged in the amended complaint, namely the asserted fact that the commodities sold by plaintiffs “ * * * are in fair and open competition with other commodities of the same general class. * * * ” On a motion to dismiss, and apart from judicial notice, the consideration of the court is limited to matters appearing on the face of the proceedings. See Department & Specialty Store Employees’ Union, Local 1265, R.C.I.A. AFL-CIO v. Brown, 9 Cir., 284 F.2d 619, 623; and
(2) whereas the amended complaint alleged several claims for relief, the district court judgment dismissing the action deals with only one such claim. A complaint is not subject to dismissal on the ground that it does not state a claim upon which relief can be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 647.