Page v. Work
| Citation | 290 F.2d 323 |
| Decision Date | 03 May 1961 |
| Docket Number | No. 16787.,16787. |
| Parties | Marietta PAGE, Appellant, v. Telford WORK et al., Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
COPYRIGHT MATERIAL OMITTED
Dudley K. Wright, Santa Ana, Cal., for appellant.
Rollin L. McNitt and Edythe Jacobs, Los Angeles, Cal., for appellees.
Before CHAMBERS, BARNES and JERTBERG, Circuit Judges.
Appellant appeals from a judgment dismissing for want of federal jurisdiction a civil antitrust action for treble damages. Jurisdiction of the district court was invoked under the provisions of Title 15 U.S.C.A. §§ 1, 2, 4, 7, 13, 15 and 18, commonly known as the Sherman Antitrust Act and the Clayton Act. This Court has jurisdiction under the provisions of Title 28 U.S.C.A. §§ 1291 and 1294.
Judgment of dismissal was entered following the granting by the district court of appellees' motion for summary judgment based on the ground that there existed no genuine issue on a material fact relating to the question of jurisdiction. To denominate the proceedings leading up to the entry of judgment of dismissal as a motion for summary judgment is somewhat of a misnomer in the light of the record in this case. Following extensive pretrial discovery proceedings and conferences, culminating in a pretrial conference order containing 30 pages of admitted facts, the case was set for trial on its merits. On the day before the trial date the district court inquired of counsel if they were agreeable to submitting the question of jurisdiction on motions for summary judgment. In response to the court's inquiry, counsel for both parties stated that they would be perfectly willing to do so. On the same date oral testimony was taken on one phase of such issue. Thereafter appellees filed their motion for summary judgment on the ground above stated, and appellant filed a motion for partial summary judgment in her favor on the issue of federal jurisdiction. The respective motions were supported by affidavits, stipulated facts, answers to requests for admissions and interrogatories, depositions, exhibits, excerpts from exhibits, and the oral testimony. Following the filing of the motions and briefs and the submission of the issue, the district court stated that the case was before the court on appellees' motion for summary judgment and on appellant's motion for partial summary judgment; that each motion is directed to the issue of jurisdiction under the Sherman and Clayton Acts, and stated, "The court has taken testimony in addition to the affidavits of counsel, and the parties are in agreement that all evidence relevant to the jurisdictional issue is now before the court." 178 F.Supp. 185.
We are satisfied from the record that all evidence germane to the question of jurisdiction was before the court. The parties appear likewise satisfied since on this appeal appellant does not contend that summary judgment was improper because of the presence of a genuine issue as to a material fact. Each party argues that under the facts before the trial court each is entitled to a judgment as a matter of law on the issue of jurisdiction. We, therefore, conclude that the parties have in effect consented to a separate trial on the issue of jurisdiction. See Gillespie v. Norris, 9 Cir., 1956, 231 F.2d 881. We note that the trial court in proper circumstances has the right to order separate trials for separate issues in the same case. Federal Rules of Civil Procedure 42(b), 28 U.S.C.A. Hence this opinion will concern itself with the correctness of the legal tests applied by the district court to the findings of fact made by it.
The action is on behalf of Consolidated Printing and Publishing Company, a dissolved corporation (hereinafter referred to as "Consolidated"), as a derivative stockholder's suit. Prior to its dissolution on May 29, 1951, Consolidated was the owner and publisher of the Los Angeles Daily Journal, a newspaper primarily engaged in the publication of legal advertising in the Los Angeles area. Violations of the antitrust law are charged against the appellees, and more particularly appellant contends:
(1) That appellees formed the Los Angeles Newspaper Service Bureau, a California corporation;
(2) That the Bureau fixed prices for public and private legal advertising in Los Angeles County;
(3) That an agent was appointed who submitted collusive bids on public advertising;
(4) That the Bureau members pooled forces and facilities to print public legal advertising, and excluded non-members from participation in these projects;
(5) That Bureau members pooled receipts derived from legal advertising;
(6) That the Bureau endeavored to prevent the general public from placing legal advertising with newspapers not members of the alleged conspiracy;
(7) That the Bureau endeavored to destroy non-members by threats, intimidation and duress;
(8) That the Bureau acquired stock and assets of various non-members;
(9) That the Bureau, by various other means not specified, eliminated competition in the field of public and private legal advertising in Los Angeles County; and
(10) The Bureau divided the market territorially among its members and excluded non-members and excluded one member from the territory of another member.
It is appellant's contention that appellee newspapers sought to destroy the Journal, not a member of the Bureau, and by their activities impaired the revenues of the Journal so severely that Consolidated was forced to dissolve and the stockholders thereof were forced to sell the assets of the Journal of $1,050,000 less than the former value of the Journal. Appellant seeks treble such amount.
Before proceeding further we will review the necessary background and historical material. The gist of appellant's charges is that the appellees combined and conspired to eliminate the Los Angeles Journal as a competitor in the field of legal advertising in the County of Los Angeles, and to monopolize such market, and did monopolize such market. Legal advertising consists of notices required by California law to be published in newspapers of general circulation within the State of California. Legal advertising is divided into two basic categories: (a) public legal advertising, which consists of notices placed by federal, state, county, city, school district, or other governmental divisions or agencies which are required by law to cause notices to be published in such newspapers; (b) private legal advertising, which consists of notices required by law to be published in connection with the conduct of business within the state or in connection with court or other proceedings pending in the state. In order to qualify under California law to publish legal notices, a newspaper must be a newspaper of general circulation as defined by law. California law requires that such newspaper must be established, printed and published at regular intervals for at least one year in the place where publication is required, and must be adjudicated to be a newspaper of general circulation. The basic purpose of laws requiring publication of legal notices is to have such notices published in the place where it is most likely that they will be read by the persons who might be concerned. Accordingly places of publication of legal notices are often expressly localized by statute, in a court decree, or action of public officials who are responsible for publication.
In the early 1930's Consolidated dominated the legal advertising market in the County of Los Angeles, and had achieved a virtual monopoly of such market. The metropolitan newspapers of the City of Los Angeles, such as the Los Angeles Times, the Los Angeles Examiner, and the Los Angeles Express, were not interested in this field of legal advertising, but a number of small newspapers of general circulation, printed and published in the smaller cities and neighborhood areas within the County of Los Angeles, were interested in participating in this field. Representatives of some of the appellee newspapers called upon officials of the city of Los Angeles and of the County of Los Angeles and sought to participate in the public legal advertising required to be printed by such officials in Los Angeles newspapers. They were advised that it was not feasible for these public officials to deal with a large number of newspapers scattered throughout the City and County of Los Angeles, and that the administrative duties of dealing separately with so many small newspapers was too burdensome. To meet the problem raised by such public officials, and in order to enable small newspaper publishers throughout the County of Los Angeles to compete in this field, some of the appellees caused to be formed in 1934 the Los Angeles Newspaper Service Bureau, a California corporation, (hereinafter referred to as the "Bureau"), in order to enable each newspaper publisher to have a downtown civic center representative, who was authorized to solicit on behalf of appellee newspapers public legal advertising from public officials in Los Angeles County. Each of the appellee newspapers individually used the services of the Bureau under a separate agreement for the solicitation and servicing of private and public legal advertising published in the respective newspaper of each appellee newspaper. Each member of the Bureau was an independent newspaper establishment, and each operated primarily in a local city or neighborhood within the City and within the County of Los Angeles. The subscription list of each such newspaper was drawn primarily from the circulation area in the respective community of the paper. The Bureau also rendered various other types of services for each publisher, such as furnishing information concerning various requirements for publication, customary rates charged for particular types of publication, guidance in the matter of forms to be executed by the publisher in proof of publication, and furnishing...
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