Raceway Properties, Inc. v. Emprise Corp., 77-3519

Citation613 F.2d 656
Decision Date31 January 1980
Docket NumberNo. 77-3519,77-3519
Parties1980-1 Trade Cases 63,161 RACEWAY PROPERTIES, INC., et al., Plaintiffs-Appellants, v. EMPRISE CORPORATION et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

George F. Karch, Jr., Charles L. Freed, Thompson, Hine & Flory, Cleveland, Ohio, for plaintiffs-appellants.

Rodney D. Joslin, Robert Hanley, Jenner & Block, Barbara Steiner, Nicole Finitzo, Chicago, Ill., George I. Meisel, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendants-appellees.

Before WEICK, CELEBREZZE and KENNEDY, Circuit Judges.

PER CURIAM.

This case is before the court on appeal from a judgment entered by the district court dismissing plaintiffs-appellants civil antitrust suit. Appellants' second amended complaint specifically alleged that defendants had secured extensions of concession franchise agreements at Thistledown Race Track through the use of illegal monopoly power, in violation of various federal and state antitrust provisions. The issues presented for appellate review are two: whether the district court's order is a final appealable order under 28 U.S.C. § 1291; and, whether the district court appropriately determined the scope of the relevant market within the context of appellants' antitrust claims. For the reasons stated below, we affirm.

The defendants-appellees are concessionaires engaged in the franchise concession business which consists of selling food, beverages, and other like items in numerous establishments like ball parks, race tracks, and airports. The appellants are the present owners and operators of Thistledown Race Track and are parties to a contract giving defendants exclusive rights to sell concessions at Thistledown. The appellants contend defendants secured extensions of the exclusive agreement in violation of law and seek a declaration that these extensions are illegal and unenforceable. 1

In April of 1977 the parties filed cross-motions for summary judgment. On June 22, 1977 the district court entered an order denying both motions finding genuine issues of material fact making summary judgment inappropriate. In its memorandum opinion, the district court determined that the relevant market for purposes of appellants' claims was the franchise market, the market in which these franchise agreements were negotiated, and not the concession market, the market in which services are provided to spectators, as appellants strongly suggested. See Twin City Sportservice, Inc. v. Charles O. Finley & Co., 512 F.2d 1264 (9th Cir. 1975).

Appellants took issue with the district court's determination of the relevant market. Appellants informed the court they believed the court's order effectively terminated the lawsuit since they were not prepared to and could not proceed with evidence regarding the relevant market outlined by the court. The appellants requested a formal order of dismissal so that they could proceed with an appeal challenging the district court's ruling on the scope of the relevant market. Such an order was entered and this appeal followed.

Initially, we must direct our inquiry to the appealability of the district court's order of dismissal pursuant to 28 U.S.C. § 1291. Appellees contend that since appellants solicited the dismissal of the case, the order is not an adverse involuntary judgment from which an appeal can be properly taken. See Scholl v. Felmont Oil Co., 327 F.2d 697 (6th Cir. 1964).

Appellants contend that jurisdiction exists for two reasons. Appellants submit the dismissal was involuntary and adverse since the district court's articulation of the relevant market effectively dismissed the case against appellants. Appellant...

To continue reading

Request your trial
26 cases
  • Ofs Fitel, LLC v. Epstein, Becker and Green, P.C., No. 07-10200.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 28, 2008
    ...The concurrence quoted our decision in Studstill, which had quoted, in dicta, the Sixth Circuit's holding in Raceway Properties v. Emprise Corp., 613 F.2d 656 (6th Cir.1980). See Druhan, 166 F.3d at 1327 n. 7 (distinguishing Studstill from cases in which the plaintiff voluntarily dismisses ......
  • Innovation Ventures, LLC v. Custom Nutrition Labs., LLC
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • December 20, 2018
    ..., 327 F.2d 697, 700 (6th Cir. 1964) . Satisfaction of that rule is a requirement of § 1291 . See Raceway Props., Inc. v. Emprise Corp. , 613 F.2d 656, 657 (6th Cir. 1980) (per curiam). We therefore must determine whether this judgment entered pursuant to stipulations comports with § 1291 ......
  • Empire Volkswagen Inc. v. World-Wide Volkswagen Corp., WORLD-WIDE
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 12, 1987
    ...only to expedite review of [a prior] order which had in effect dismissed [plaintiffs'] complaint." Raceway Properties, Inc. v. Emprise Corp., 613 F.2d 656, 657 (6th Cir.1980); see Bogorad v. Eli Lilly & Co., 768 F.2d 93 (6th Cir.1985). Such a procedural maneuver normally is employed when th......
  • Harris v. Cochise Health Systems
    • United States
    • Arizona Court of Appeals
    • June 19, 2007
    ...voluntary dismissal "to expedite review of an order which had in effect dismissed appellant's complaint"); Raceway Properties, Inc. v. Emprise Corp., 613 F.2d 656, 657 (6th Cir.1980) (judgment below appealable because "appellants [sic] solicitation of the formal dismissal was designed only ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT