561 F.2d 434 (3rd Cir. 1977), 75-1666, Bogosian v. Gulf Oil Corp.

Docket Nº:75-1666, 75-1833, 75-1667 and 75-1834.
Citation:561 F.2d 434
Party Name:Paul J. BOGOSIAN, on behalf of himself and all those similarly situated, Appellant, v. GULF OIL CORPORATION, American Oil Company, Humble Oil & Refining Company, Mobil Oil Company, Phillips Petroleum Company, Shell Oil Company, Sun Oil Company, Texaco, Inc., Cities Service Oil Company, Atlantic Richfield Company, Union Oil Company of California, Un
Case Date:July 21, 1977
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 434

561 F.2d 434 (3rd Cir. 1977)

Paul J. BOGOSIAN, on behalf of himself and all those

similarly situated, Appellant,

v.

GULF OIL CORPORATION, American Oil Company, Humble Oil &

Refining Company, Mobil Oil Company, Phillips Petroleum

Company, Shell Oil Company, Sun Oil Company, Texaco, Inc.,

Cities Service Oil Company, Atlantic Richfield Company,

Union Oil Company of California, Union 76 Division, Amerada

Hess Corp., Hess Oil and Petroleum Division, Getty Oil

Company, Standard Oil Company of Ohio, Standard Oil Company

of California.

Louis J. PARISI, on behalf of himself and all others

similarly situated, Appellant,

v.

GULF OIL CORPORATION, American Oil Company, Exxon

Corporation, Mobil Oil Company, Phillips Petroleum Company,

Shell Oil Company, Sun Oil Company, Texaco, Inc., Cities

Service Oil Company, Atlantic Richfield Company, Union Oil

Company of California, Union 76 Division, Amerada Hess

Corp., Hess Oil and Petroleum Division, Getty Oil Company,

Standard Oil Company of Ohio, Standard Oil Company of

California, Chevron Oil Co.

Nos. 75-1666, 75-1833, 75-1667 and 75-1834.

United States Court of Appeals, Third Circuit

July 21, 1977

Argued March 28, 1977.

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David Berger, Warren D. Mulloy, Bruce K. Cohen, Warren Rubin, Steven M. Kramer, David Berger, P. A., Philadelphia, Pa., Harold Brown, Brown & Leighton, Boston, Mass., Norman P. Zarwin, Zarwin, Baum, Arrangio & Somerson, Philadelphia, Pa., for appellants, Paul J. Bogosian and Louis J. Parisi.

Frank W. Morgan, Pittsburgh, Pa., Hoyt A. Harmon, Jr., Bala-Cynwyd, Pa., for Gulf Oil Corp.

Patrick T. Ryan, Drinker, Biddle & Reath, Philadelphia, Pa., for American Oil Co.

Benjamin M. Quigg, Jr., Stephen W. Armstrong, Morgan, Lewis & Bockius, Philadelphia, Pa., Robert L. Norris, Houston, Tex., for Exxon Corp.

Charles F. Rice, James L. Burton, New York City, for Mobil Oil Corp.

Ralph W. Brenner, David L. Grove, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., Lewis J. Ottaviani, Bartlesville, Okl., for Phillips Petroleum Co.

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John T. Clary, Philadelphia, Pa., William Simon, William R. O'Brien, Robert J. Brookhiser, Howrey & Simon, Washington, D. C., for Shell Oil Co.

John G. Harkins, Jr., Barbara W. Mather, Pepper, Hamilton & Scheetz, Philadelphia, Pa., Robert M. Dubbs, St. Davids, Pa., for Sun Oil Co.

Henry T. Reath, Duane, Morris & Heckscher, Philadelphia, Pa., Milton Handler, Milton J. Schubin, Kaye, Scholer, Fierman, Hays & Handler, New York City, for Texaco, Inc.

Edward W. Mullinix, Arthur H. Kahn, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for The Standard Oil Co. (Ohio).

Moses Lasky, Richard S. Haas, Brobeck, Phleger & Harrison, San Francisco, Cal., Edward W. Mullinix, Arthur H. Kahn, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for Union Oil Co. of California.

H. Francis DeLone, Richard G. Schneider, Dechert, Price & Rhoads, Philadelphia, Pa., C. Lansing Hays, Jr., Hays, Landsman & Head, New York City, for Getty Oil Co.

Robert W. Sayre, Frederick H. Ehmann, Jr., Saul, Ewing, Remick & Saul, Philadelphia, Pa., William E. Jackson, Milbank, Tweed, Hadley & McCloy, New York City, for Amerada Hess Corp.

Allen F. Maulsby, Cravath, Swaine & Moore, New York City, George P. Williams, III, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for Chevron Oil Co.

OPINION

Before SEITZ, Chief Judge, ALDISERT and GIBBONS, Circuit Judges.

SEITZ, Chief Judge.

In separate lawsuits, two independent service station dealers, Bogosian and Parisi, sued their respective lessors, Gulf and Exxon, alleging that the lease contracts imposed a tie-in in violation of § 1 of the Sherman Act. Each plaintiff also joined as party defendants fourteen other major oil companies whom they alleged, together with Gulf and Exxon, engaged in what they now argue was concerted action to unlawfully tie the leasing and subleasing of gas station sites to the purchase of gasoline supplied by each dealer's lessor. More specifically, plaintiffs alleged that, at least since 1957, and continuing to the present, "defendants, through a course of interdependent consciously parallel action, have required all dealers who lease, sublease, or renew such leases or subleases for one or more of defendants' service stations to:

(a) license the use of the lessor's trademark;

(b) sell only the lessor's gasoline; and

(c) not sell gasoline purchased from any other source under the licensed trademark."

Plaintiffs alleged that these restrictions forced them to buy gasoline at whatever price their lessor offered and prevented them from selling other brands of gasoline. They sought to maintain the suit on behalf of all present and former lessee gasoline dealers of the defendants.

After substantial discovery limited to the class action allegations, the district court refused to certify the class (62 F.R.D. 124, E.D.Pa.1973), and under 28 U.S.C. § 1292(b) certified as immediately appealable its order denying class action status. This court refused petitioners' application to appeal pursuant to § 1292(b). (Misc. Record No. 76-8087, April 17, 1974). In April, June and July of 1975 the district court granted motions for summary judgment made by all moving defendants which had had no business dealings with the named plaintiffs (non-lessor defendants), but refused the motions as to the lessors of the named plaintiffs. 393 F.Supp. 1046 (E.D.Pa.1975). Prior to the grant of the motions no discovery had been taken on the issue of concerted action. Although plaintiffs moved for discovery under Fed.R.Civ.P. 56(f), 1 the court

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held that "(b)ecause the complaint fails, as a matter of law, to state a cause of action under the Sherman Act § 1 against (nonlessor defendants), summary judgment will be granted and plaintiffs' Rule 56(f) motion will be denied." (footnote omitted). The court granted the summary judgment motion because it concluded that the allegation of "interdependent consciously parallel action" in a complaint is an insufficient statement of the concerted action necessary to state a claim under § 1.

All of the orders granting summary judgment contained an express determination that, pursuant to Fed.R.Civ.P. 54(b), there is no just reason to delay and expressly directing entry of final judgment, although the actions were not wholly terminated by the orders. Subsequently, the district court filed a supplementary opinion expressing the reasons for its 54(b) determination. Plaintiffs timely appealed and defendants moved to dismiss the appeals contending that the entry of judgment was an abuse of discretion and should be vacated.

I. APPEALABILITY

  1. Finality

    Behind Rule 54(b) is the recognition that with the liberal joinder of claims and parties now permitted by the federal rules, the policy against piecemeal review implicit in the "single judicial unit" rule must be weighed against the untoward effects which can occur when decisions final as to some claims and some parties cannot be entered until the litigation is final as to all claims and all parties. The district court is not empowered to enter judgment on a decision which is not final. However, by determining that a final decision which terminates the action as to one or more but fewer than all parties or as to one or more but fewer than all claims is an appropriate judicial unit, the court can dispatch for appeal decisions which otherwise would not then be appealable because of the "single judicial unit" rule. Wetzel v. Liberty Mutual Insurance Co., 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1957). The threshold issue, therefore, is whether the order appealed from finally resolved at least one entire claim, leaving at least one separate claim unresolved or alternatively whether the order finally determined the rights and liabilities of at least one party leaving at least one other party whose rights or liability remains undetermined.

    Determination of whether multiple parties are involved within the meaning of the rule is not difficult. Prior to the 1961 amendment it was thought that a complaint charging an antitrust conspiracy against several defendants stated only one claim and dismissal of the complaint as to fewer than all defendants was not appealable under Rule 54(b). E. g., Steiner v. 20th Century-Fox Film Corp., 220 F.2d 105 (9th Cir. 1955). The 1961 amendment was intended to change this result. See Advisory Committee Note to 1961 amended 54(b). In view of the purpose of the amendment, it is clear that even if the complaint states only one claim, the district court is empowered to enter judgment upon an order terminating the action as to one or more but fewer than all parties. See 6 J. Moore, Federal Practice Para. 54.34 (2.-2). (2d ed. 1948).

    The district court granted summary judgment and directed the immediate entry of judgment for all moving defendants except Gulf and Atlantic Richfield in 393 F.Supp. 1046 (Bogosian ) and to all moving defendants except Exxon and Atlantic Richfield in 393 F.Supp. 1046 (Parisi ); the motions for summary judgment filed by Atlantic Richfield on August 6, 1975 were denied without prejudice because they were made after plaintiffs had filed their notices of appeal. Cities Service Oil Company, a defendant in both cases, has not moved for summary judgment. Therefore, Cities Service and Atlantic Richfield remain as defendants

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    in both cases and are not before the court on appeal. In entering judgment in favor of those...

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