24 F.3d 508 (3rd Cir. 1994), 93-3556, Pastore v. Bell Telephone Co. of Pennsylvania

Docket Nº:93-3556.
Citation:24 F.3d 508
Party Name:Gary L. PASTORE, an individual; National Security Systems Corporation, a Pennsylvania corporation, Appellants v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, a Pennsylvania corporation; Bell Atlantic Corporation, a Delaware corporation; Ronald Donaldson, Robert S. Fadzen, Jr.; Raymond J. Wickline; George Caldwell.
Case Date:May 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 508

24 F.3d 508 (3rd Cir. 1994)

Gary L. PASTORE, an individual; National Security Systems

Corporation, a Pennsylvania corporation, Appellants

v.

The BELL TELEPHONE COMPANY OF PENNSYLVANIA, a Pennsylvania

corporation; Bell Atlantic Corporation, a Delaware

corporation; Ronald Donaldson, Robert S. Fadzen, Jr.;

Raymond J. Wickline; George Caldwell.

No. 93-3556.

United States Court of Appeals, Third Circuit

May 16, 1994

May 2, 1994.

Page 509

John R. Orie, Jr., Orie & Zivic, Pittsburgh, PA, for appellants.

Richard B. Tucker, III, Jeffrey J. Leech, Diane Hernon Chavis, Pittsburgh, PA, for appellees Bell Telephone Co. of Pennsylvania, Bell Atlantic Corp., Ronald Donaldson, Raymond J. Wickline, George Caldwell.

Ralston S. Jackson, Odermatt & Jackson, Pittsburgh, PA, for appellee Robert S. Fadzen, Jr.

Before: SLOVITER, Chief Judge, HUTCHINSON, and SEITZ, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Chief Judge.

Gary Pastore and National Security Systems Corporation (NASSCO), plaintiffs-appellants, appeal from the entry of summary judgment in favor of defendants-appellees Bell Atlantic Corporation, its subsidiary, Bell Telephone Company of Pennsylvania, and four individual employees on plaintiffs' attempted monopolization claim under section 2 of the Sherman Act, 15 U.S.C. Sec. 2 (Supp. IV 1992).

I.

FACTS AND PROCEDURAL HISTORY

The facts in this case are, for the most part, not in dispute. Pastore established

Page 510

NASSCO in early 1986 to install a sophisticated custom-designed access control communications security network (CDACCSN) for Bell of Pennsylvania, which awarded it a contract for thirty of its facilities. Bell of Pennsylvania told Pastore that it planned to order the same system for all of its 800 facilities if this pilot project was successful and that it might extend to as many as 4,000 facilities in other subsidiaries of Bell Atlantic.

The pilot project was timely completed and Bell of Pennsylvania officials expressed satisfaction with NASSCO's performance. Thereafter, they repeatedly asked NASSCO to surrender the computer source codes and specific proprietary information and technical designs relating to the CDACCSN which NASSCO declined to do, but because Bell of Pennsylvania insisted on some guarantees in the event of NASSCO's bankruptcy, NASSCO agreed to deposit in escrow the requested proprietary information.

Nonetheless, Bell of Pennsylvania ceased doing business with NASSCO and told NASSCO in March 1990 that a project for a Pittsburgh facility had been placed "on hold." In December 1990, Pastore was informed that a security system had been installed by an entity entitled Integrated Access Systems in the Monroeville Revenue Accounting Center, although the site was within the network of facilities to be installed and serviced exclusively by NASSCO. Other already-approved projects which were part of the first planned phase involving installation of the CDACCSN statewide were not carried forward, while none of the work planned for the second or third phase was initiated.

Plaintiffs filed this action in the District Court for the Western District of Pennsylvania alleging that defendants attempted to monopolize the relevant market in violation of section 2 of the Sherman Act 1, as well as under a variety of pendent state law tort and contract theories. 2 Defendants moved to dismiss for failure to state a claim under the Sherman Act. The district court issued an order converting the motion to dismiss into a motion for summary judgment as to the Sherman Act claim only. After granting plaintiffs two extensions for further discovery, the court granted the summary judgment motion, holding that the plaintiffs had produced no evidence of a dangerous probability of the defendants monopolizing the relevant market, and dismissed the pendent state law claims without prejudice. Plaintiffs filed this timely appeal.

II.

DISCUSSION

A.

Additional Discovery

Throughout their brief, plaintiffs argue that summary judgment was inappropriate because they did not have adequate time for discovery. As this court has previously noted, we review a claim that the district court has prematurely granted summary judgment for abuse of discretion. See Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir.1989). If a party believes that s/he needs additional time for discovery, Fed.R.Civ.P. 56(f) specifies the procedure to be followed, 3 and explicitly provides that the party must

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file an affidavit setting forth why the time is needed. Plaintiffs concede, however, that they did not submit an affidavit. This concession is usually fatal, because by not filing "a Rule 56(f) affidavit, [they have] not preserved [their] objection to [their] alleged inability to obtain necessary discovery." Falcone v. Columbia Pictures Indus., Inc., 805 F.2d 115, 117 n. 2 (3d Cir.1986).

Plaintiffs contend that their brief opposing the defendants' motion for summary judgment constructively meets Rule 56(f)'s affidavit requirement. In the past we have rejected such arguments because "Rule 56(f) clearly requires that an affidavit be filed. 'The purpose of the affidavit is to ensure that the nonmoving party is invoking the protection of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition.' An unsworn memorandum opposing a party's motion for summary judgment is not an affidavit." Radich, 886 F.2d at 1394 (citations omitted). 4

Even if we were to regard the request in plaintiffs' brief opposing the defendants' motion for summary judgment that the court "delay [summary judgment] until a more complete factual record is developed," Plaintiff's Supplemental Memorandum of Law in Opposition to Motion for...

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