726 F.2d 291 (6th Cir. 1984), 82-1962, Shavrnoch v. Clark Oil and Refining Corp.

Docket Nº:82-1962.
Citation:726 F.2d 291
Party Name:Joseph J. SHAVRNOCH, Plaintiff-Appellant, v. CLARK OIL AND REFINING CORPORATION, a Wisconsin corporation, Defendant-Appellee.
Case Date:February 01, 1984
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 291

726 F.2d 291 (6th Cir. 1984)

Joseph J. SHAVRNOCH, Plaintiff-Appellant,

v.

CLARK OIL AND REFINING CORPORATION, a Wisconsin corporation,

Defendant-Appellee.

No. 82-1962.

United States Court of Appeals, Sixth Circuit

February 1, 1984

Argued Nov. 9, 1983.

Page 292

Bruce A. Newman, argued, Richard J. Drew, Flint, Mich., for plaintiff-appellant.

Miller, Canfield, Paddock & Stone, Larry J. Saylor, Michael P. Coakley, Gregory L. Curtner, argued, Detroit, Mich., for defendant-appellee.

Before ENGEL and CONTIE, Circuit Judges, and GIBSON, Senior Circuit Judge. [*]

CONTIE, Circuit Judge.

Plaintiff Joseph J. Shavrnoch appeals from a summary judgment dismissing his claim that defendant Clark Oil & Refining Corp. (Clark) engaged in price discrimination in violation of Sec. 2(a) of the Clayton Act, as amended by the Robinson-Patman Antidiscrimination Act, 15 U.S.C. Sec. 13(a), and unlawful monopolization in violation of Sec. 2 of the Sherman Antitrust Act, 15 U.S.C. Sec. 2. We affirm the summary judgment on plaintiff's unlawful monopolization claim and plaintiff's first price discrimination claim. We also remand this case to the district court for consideration of plaintiff's second price discrimination claim.

I.

The plaintiff was the lessee and operator of a Clark service station in Fenton, Michigan from 1968 until July 1982. The plaintiff stated in a deposition that his service station was one of twelve stations in Fenton and that the Fenton market was extremely competitive. The defendant, Clark Oil, is a Wisconsin corporation that refines and markets petroleum products. The record indicates that Clark owns and operates 203 service stations in Michigan and 1,114 stations nationwide. As of 1981, Clark had a 5.9% share of the Michigan gasoline market and a 1.06% share of the national gasoline market.

The defendant markets its gasoline in three ways. First, it sells gasoline directly through Clark stations operated by Clark employees. Second, it sells gasoline to branded independent dealers, such as plaintiff, who lease their stations from Clark. These dealers have the option of purchasing gasoline on either a consignment or a tankwagon basis. 1 Finally, Clark sells a small amount of gasoline to wholesalers and unbranded retailers at the refiner's loading rack. These dealers supply their own transportation and do not utilize Clark's advertising or administrative services.

In August 1980, the plaintiff brought this antitrust action in which he alleged that Clark was driving branded independent dealers out of business in order to increase

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the number of company-operated stations. To achieve this result, the plaintiff contended, Clark engaged in illegal price discrimination by charging branded independent dealers more for gasoline than it charged (1) company-operated stations and (2) wholesalers and unbranded retailers. The plaintiff also alleged that Clark violated Sec. 2 of the Sherman Act by limiting the supply of gasoline to its branded independent dealers.

In September 1982, Clark filed a motion for summary judgment along with a supporting brief and the affidavit of Harold J. Lessner, Assistant Secretary of Clark Oil. In his affidavit, Lessner states that the company-operated stations are operated under the complete control and supervision of Clark. As a result, Lessner indicates that Clark supplies gasoline to these stations by "internal transfer" and not by sale. Lessner also states that Clark sells a small amount of gasoline to wholesalers and unbranded retailers at a reduced or "rack" price. Lessner justifies the lower price by explaining that these buyers transport the gasoline themselves and do not utilize Clark's administrative services. The record indicates that the plaintiff filed a response brief with no affidavits or other documentary evidence.

In a memorandum opinion dated October 22, 1982, the district court granted defendant's motion for summary judgment. The court found that Clark was entitled to summary judgment on plaintiff's first price discrimination claim because Clark had not made sales to two different "purchasers" by supplying gasoline to branded independent dealers and company-operated stations. 15 U.S.C. Sec. 13(a). The court explained that the relationship between Clark and its company-operated stations could not be characterized as a seller-purchaser relationship. The court did not, however, address plaintiff's second price discrimination claim that Clark charged branded independent dealers more...

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