475 F.2d 531 (10th Cir. 1973), 72-1224, Ando v. Great Western Sugar Co.

Docket Nº:72-1224.
Citation:475 F.2d 531
Party Name:Jack ANDO, Plaintiff-Appellant, v. The GREAT WESTERN SUGAR COMPANY, Defendant-Appellee.
Case Date:March 20, 1973
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 531

475 F.2d 531 (10th Cir. 1973)

Jack ANDO, Plaintiff-Appellant,



No. 72-1224.

United States Court of Appeals, Tenth Circuit.

March 20, 1973

Argued and Submitted Sept. 21, 1972.

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J. D. Fitzstephens, Cody, Wyo., for plaintiff-appellant.

Jay H. Topkis, New York City (Paul B. Godfrey, Cheyenne, Wyo., Paul, Weiss, Rifkind, Wharton & Garrison, Baer & McGoldrick, Max Gitter and

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Thomas Baer, New York City, of counsel, on the brief), for defendant-appellee.

Before LEWIS, Chief Judge, and JONES [*] and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Jack Ando, a citizen of the State of Wyoming, brought an action in the United States District Court for the District of Wyoming against the Great Western Sugar Company, a Delaware corporation with its principal place of business in the State of Colorado. The complaint presented three separate claims for relief. The first two were based on diversity jurisdiction and alleged libel and slander, and the third claim was for an alleged violation of federal antitrust laws.

Both parties to the controversy engaged in extensive pre-trial discovery. Based, then, on various answers to interrogatories, admissions and depositional proof, including the depositions of Jack Ando himself, Great Western moved for summary judgment under Fed.R.Civ.P. 56. After extended argument and briefing of the matter, the trial court granted the motion and entered judgment for Great Western. Ando now appeals.

We affirm on the ground that based on the record before it, the trial court was justified in concluding that there was no genuine issue of a material fact and that summary judgment was proper. Background information which is not really in dispute must be fully developed in order to demonstrate the propriety of the trial court's action.

Ando is a grower of sugar beets and in the past, at least, has sold his beets, under contract, to Great Western, the latter being a processor of sugar beets and in connection therewith maintaining several processing plants in the Rocky Mountain West. In 1968, Ando, in addition to his farming activities, entered into a contract with Zwaanesse Ltd., a Dutch concern, to become its franchised dealer to sell in the western part of the United States its sugar beet seed, known as "Zwaanpoly."

Ando had earlier contacted Great Western and inquired as to whether Great Western would be interested in assisting him in marketing the Zwaanpoly beet seed. Great Western declined, but informed Ando that he was free to attempt to sell the Dutch seed to growers under contract to Great Western. In this regard it should be mentioned that Great Western had its own sugar beet seed which it sold to its growers, and others, but it nonetheless gave permission to Ando to sell his Dutch seed to Great Western growers. And this Ando did during the 1968 season.

During the latter part of 1968 a dispute, or at least a difference of opinion, arose between Ando and Great Western, and others, concerning the general adaptability of Zwaanpoly seed to the Rocky Mountain West, the discussion centering on the disease resistance qualities of Zwaanpoly, as well as its relative sugar content and processed juice purity as opposed to beets grown from other seeds, including Great Western's own commercial beet seed strains.

After considerable discussion, it was agreed that for the 1969 season, at least, Great Western would continue to buy beets grown from Zwaanpoly seed, and that for that year, at least, Ando could continue to sell his seeds to Great Western growers who chose to buy it. The question as to whether Zwaanpoly would be used in 1970, and thereafter, was thereupon referred to a so-called "Joint Research Committee, " which was charged with the responsibility of conducting tests of Zwaanpoly seed, as compared with other beet seed, for disease resistance, sugar content, purity, and other significant characteristics. The Joint Research Committee was composed of thirteen elected representatives of the growers and three representatives of Great Western.

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Beginning in the spring of 1969, the Joint Research Committee, hereinafter referred to as JRC, caused to be conducted extensive testing of the Zwaanpoly seed, as well as other sugar beet seeds, such tests being conducted at different locations by various branches of the United States Department of Agriculture, by a number of universities, as well as through the facilities of Great Western. Additionally, Ando made available to JRC his views on the matter, both orally and in writing, as did Dr. Zwaan himself, Dr. Zwaan being the developer of the Dutch seed...

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