Serfecz v. Jewel Food Stores

• Decision Date: 26 September 1995
• Docket Number: 94-4017 and 95-1201,Nos. 94-3211,s. 94-3211
• Citation: 67 F.3d 591
• Parties: 1995-2 Trade Cases P 71,128 Joseph SERFECZ and First Chicago Trust, Plaintiffs-Appellants, v. JEWEL FOOD STORES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 591

67 F.3d 591

1995-2 Trade Cases P 71,128

Joseph SERFECZ and First Chicago Trust, Plaintiffs-Appellants, v. JEWEL FOOD STORES, et al., Defendants-Appellees.

Nos. 94-3211, 94-4017 and 95-1201.

United States Court of Appeals,

Seventh Circuit.

Argued May 11, 1995.

Decided Sept. 26, 1995.

Wayne E. Dekens, Lynda J. Khan (argued), Khan & Associates, Chicago, IL, for Joseph Serfecz, and First Chicago Trust Company of Illinois.

David Marx, Jr. (argued), Anne R. Pramaggiore, David B. Bayless, Christine M. Drylie, McDermott, Will & Emery, Chicago, IL, for Jewel Food Stores, Incorporated and American Stores Properties, Incorporated.

Steven H. Cohen, Henry C. Krasnow (argued), Jeremy W. Hobbs, Krasnow, Sanberg & Cohen, Chicago, IL, for Patrick F. Daly, Patrick F. Daly & Associates, Limited, DEI Incorporated and Dalan/Jupiter, Incorporated.

James P. Chapman, Chapman & Associates, Chicago, IL, Robert A. Chapman, Chicago, IL, for United Skates of America, Incorporated.

Before CUDAHY, ESCHBACH and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Joseph Serfecz and First Chicago Trust Company of Illinois ("First Chicago Trust") have ownership interests in the Grove Mall in Elk Grove Village, Illinois. They claim that Jewel Food Stores ("Jewel"), American Stores Properties, Inc. ("American Properties"), and the developers of competing Elk Crossing Mall have conspired to run Grove Mall out of business and to monopolize the retail grocery and shopping center markets in Elk Grove Village. They brought this action alleging defendants violated the Sherman Act, 15 U.S.C. Secs. 1, 2. They also alleged supplemental state law claims of malicious prosecution and breach of lease. The district court granted the defendants' motions for summary judgment with regard to the antitrust and malicious prosecution claims and granted a partial summary judgment with regard to the breach of lease claim. Mr. Serfecz and First Chicago Trust now appeal that judgment. ¹ For the reasons set forth below, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

In 1963, Jewel entered into a lease for retail space in Grove Mall. Jewel's lease ran until 1986 and provided Jewel with three five-year options to renew. In 1977, Mr. Serfecz purchased Grove Mall and assumed all existing leases including the Jewel lease. In 1986, Jewel exercised its first option to renew and in 1991 it exercised its second option. Jewel's current lease expires in 1996 and, based upon the remaining five-year option, may be extended until 2001.

From 1963 until 1987, Jewel owned and operated a grocery store in its leased premises at Grove Mall. In October 1987, Jewel vacated the premises and moved its grocery operation across the street to the newly constructed Elk Crossing Mall. Since its move, Jewel has continued to pay rent and has exercised its second option to renew the lease. Jewel has refused to give up its lease-hold interest in the premises and its retail space has remained unoccupied. Jewel proposed to sublet the space to United Skates of America ("United Skates") for use as a roller skating rink. Mr. Serfecz objected to this proposed sublease because he believed occupancy by United Skates would ruin Grove Mall as a retail center and increase his insurance liability. In 1990, Jewel filed an action in state court that sought a declaratory judgment regarding its right to sublet. The Illinois trial court ruled against Jewel; it held that the express provisions of the lease gave Mr. Serfecz the right to refuse any sublet that would increase his insurance rates. The appellate court affirmed.

Mr. Serfecz, joined by First Chicago Trust, ² brought this action against Jewel,

                American Properties, 3 United Skates, 4 and the developers and operators of the Elk Crossing Mall. 5  That complaint claimed that the defendants conspired to devalue and to destroy Grove Mall in order to eliminate competition in the retail grocery and shopping center markets.  The plaintiffs contend that the defendants conspired to keep the Jewel rental space empty, to prevent a major anchor tenant from taking over Jewel's rental space, to obstruct Mr. Serfecz's attempt to redevelop Grove Mall, and to coerce Grove Mall tenants to leave and move across the street to Elk Grove Mall.  The plaintiffs maintain that the alleged conspiracy is part of an overall marketing strategy of restricting the use of property in order to keep out competitors and to restrain trade.  In Counts I and II of their complaint, plaintiffs alleged defendants violated Sec. 1 and Sec. 2 of the Sherman Act, 15 U.S.C. Secs. 1, 2.  In Count III plaintiffs allege Jewel's declaratory judgment action regarding the United Skates sublet was malicious prosecution and in Count IV allege breach of lease by Jewel
                

B. The Antitrust Laws: The Relevant Statutory Provisions

Section One of the Sherman Act prohibits anticompetitive activities designed to restrain unreasonably trade and bans "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce...." 15 U.S.C. Sec. 1. Section Two prohibits monopolistic practices and provides sanctions for "[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce...." 15 U.S.C. Sec. 2.

Section Four of the Clayton Act defines the class of persons who may bring a private suit under the antitrust laws. Section Four provides:

[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained and the cost of suit, including a reasonable attorney's fee.

15 U.S.C. Sec. 15. The Supreme Court has held that "Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation." Hawaii v. Standard Oil Co., 405 U.S. 251, 263 n. 14, 92 S.Ct. 885, 892 n. 14, 31 L.Ed.2d 184 (1972). The language of Sec. 4 has been construed to limit the parties who may bring an antitrust action to (1) those who have suffered the type of injury that the antitrust laws were intended to prevent and (2) those whose injuries are a result of defendant's unlawful conduct. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 698, 50 L.Ed.2d 701 (1977). The Court, focusing on Congress' intent to have antitrust laws construed in light of the common law, also has read Sec. 4 to contain a proximate cause element, denying standing to plaintiffs whose injuries are indirect or secondary. Associated Gen. Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 540-46, 103 S.Ct. 897, 909-12, 74 L.Ed.2d 723 (1983). The Court has identified several factors to be considered in determining whether a plaintiff is the proper party to bring a private action under the antitrust laws: (1) the causal connection between the antitrust violation and the plaintiff's injury;

(2) the nature of the plaintiff's injury and the relationship between the plaintiff's injury and the type of activity sought to be redressed under the antitrust laws; and (3) the speculative nature of the plaintiff's claim for damages and the potential for duplicative recovery or complex apportionment of damages. Associated Gen. Contractors, 459 U.S. at 537-46, 103 S.Ct. at 908-12; see also Nelson v. Monroe Regional Medical Ctr., 925 F.2d 1555, 1562 (7th Cir.), cert. dismissed, 502 U.S. 903, 112 S.Ct. 285, 116 L.Ed.2d 236 (1991).

C. The District Court Proceeding

The district court granted the defendants' motion for summary judgment on the antitrust claims. With respect to the monopolization of the retail grocery market claim, the court held that the plaintiffs lacked antitrust standing. The court held that the plaintiffs had presented enough evidence for a trier of fact to find that Jewel acted deliberately to prevent a competitor from occupying Jewel's rental space and to find a causal connection between the absence of a grocery store anchor tenant and the demise of Grove Mall. The court concluded that plaintiffs' injury was, nevertheless, too indirect to confer standing with respect to the retail grocery market. With respect to the retail shopping center market, the court determined that the plaintiffs had standing, but that they had failed to establish a genuine issue of triable fact as to the existence of the conspiracy among the defendants to restrain trade and to monopolize sales and development in this market.

The district court also granted defendants' motion for summary judgment on the malicious prosecution claim. It held that plaintiffs had failed to allege a special injury. The court additionally granted defendants' motion for summary judgment on the breach of lease claim insofar as the plaintiffs' claim was based upon Jewel's failure to continue operating as a grocery store at Grove Mall. The court denied the defendants' motion to the extent that the plaintiffs' claim was based upon the illegal use provision of the lease. It determined that the broad nonrestrictive wording of the illegal use provision prohibited using the premises to violate the antitrust laws. The court reasoned that, although the plaintiffs lacked antitrust standing to recover damages for the monopolization of the grocery market, they did have standing, as parties to the lease, to sue for breach of the lease provision relating to violations of the law, arguably including violation of Sec. 2 of the Sherman Act. In the district court's view, "use of the leased premises in furtherance of a Section 2 antitrust violation could indeed constitute a breach of the lease." Mem.Op. at 38. As we have noted earlier, supra n. 1, this issue is...