13 F.3d 366 (10th Cir. 1993), 92-1335, Smalley & Co. v. Emerson & Cuming, Inc.

Docket Nº:92-1335.
Citation:13 F.3d 366
Party Name:SMALLEY & COMPANY, Plaintiff-Appellant, v. EMERSON & CUMING, INC., Defendant-Appellee.
Case Date:December 30, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 366

13 F.3d 366 (10th Cir. 1993)

SMALLEY & COMPANY, Plaintiff-Appellant,


EMERSON & CUMING, INC., Defendant-Appellee.

No. 92-1335.

United States Court of Appeals, Tenth Circuit

December 30, 1993

Sean R. Gallagher (Daniel R. Satriana, Jr., with him on the briefs), of Hall & Evans, Denver, CO, for plaintiff-appellant.

Bobbee J. Musgrave (B. Lawrence Theis and Jane G. Ebisch with her on the brief), of Musgrave & Theis, Denver, CO, for defendant-appellee.

Before LOGAN, SETH and SEYMOUR, Circuit Judges.

Page 367

LOGAN, Circuit Judge.

Plaintiff Smalley & Company (Smalley) appeals from summary judgment entered in favor of defendant Emerson & Cuming, Inc. (E & C) on all of Smalley's claims. Smalley alleged four federal antitrust violations: (1) allocation of the market and price-fixing, (2) monopolization, (3) conspiracy to monopolize, and (4) attempt to monopolize, in violation of the Sherman Antitrust Act, 15 U.S.C. Secs. 1 and 2; and four state law claims: (1) breach of contract, (2) promissory estoppel, (3) tortious interference with prospective contract, and (4) violation of the Colorado Restraint of Trade and Commerce Act, Colo.Rev.Stat. Secs. 6-4-101 to 6-4-108.

On appeal, Smalley argues that it presented enough evidence to preclude summary judgment on its Sec. 1 price-fixing and market allocation claims, and that the district court erred in concluding that Smalley's narrow definition of the relevant product market was unreasonable. When considering a grant of summary judgment we review the district court's conclusions of law de novo, and construe the record in the light most favorable to the party opposing summary judgment. City of Chanute v. Williams Natural Gas Co., 955 F.2d 641, 647 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992).

The district court opinion, reported as Smalley & Co. v. Emerson & Cuming, Inc., 808 F.Supp. 1503 (D.Colo.1992), contains an accurate and thorough recitation of the relevant facts. See id. at 1506-08. We only summarize them briefly for our discussion. E & C manufactures industrial adhesives and sealants. It maintains a dual distribution system for its products; it sells directly to some customers and utilizes distributors to sell to other customers. Smalley contracted with E & C in 1987 for a distributorship covering Arizona, Colorado, New Mexico, and Utah. That distributorship ended...

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