766 F.2d 1292 (9th Cir. 1985), 84-1778, In re Airport Car Rental Antitrust Litigation

Docket Nº:84-1778.
Citation:766 F.2d 1292
Party Name:In re AIRPORT CAR RENTAL ANTITRUST LITIGATION. TRANS RENT-A-CAR, INC., Plaintiff-Appellant, v. The HERTZ CORPORATION, et al., Defendants-Appellees.
Case Date:October 07, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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766 F.2d 1292 (9th Cir. 1985)


TRANS RENT-A-CAR, INC., Plaintiff-Appellant,


The HERTZ CORPORATION, et al., Defendants-Appellees.

No. 84-1778.

United States Court of Appeals, Ninth Circuit

October 7, 1985

Withdrawn from Submission Feb. 28, 1985. Argued and Submitted Jan. 16, 1985.

Withdrawn from Submission Feb. 28, 1985.

Resubmitted May 3, 1985.

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Francis O. Scarpulla, Stephen V. Scarpulla, Scarpulla & Scarpulla, San Francisco, Cal., for plaintiff-appellant.

Jerome J. Shestack, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Daniel R. Shulman, Gray, Plant, Mooty, Mooty & Bennett, Minneapolis, Minn., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, FARRIS, and BEEZER, Circuit Judges.


The opinion and dissent filed July 22, 1985, are withdrawn and the attached opinion and dissent are ordered filed.

FARRIS, Circuit Judge:


Trans Rent-A-Car, Inc. brought this antitrust action against Hertz Corp., Avis Rent-A-Car System, Inc., and National Car Rental System, Inc., alleging that the defendants had conspired to monopolize and to exclude Trans from the "on-airport car rental market" in violation of sections one and two of the Sherman Act, 15 U.S.C. Secs. 1 and 2. Trans' action was consolidated with ten similar actions into a single multidistrict litigation. Avis settled with all of the plaintiffs in the consolidated cases. Subsequently, we affirmed a summary judgment in favor of Hertz and National in one of the consolidated cases, ruling that the plaintiff (Budget Rent-A-Car of Washington-Oregon, Inc.) had presented only evidence of conduct that was exempt from the antitrust laws under the Noerr-Pennington 1 doctrine. In Re Airport Car Rental Antitrust Litigation, 693 F.2d 84 (9th Cir.1982) ("Budget "), cert. denied, 462 U.S. 1133, 103 S.Ct. 3114, 77 L.Ed.2d 1368 (1983). Hertz and National filed a motion for summary judgment in the remaining cases. With the exception of Trans, all of the remaining plaintiffs settled with Hertz and National. The district court granted the defendants' motion for summary judgment in the Trans case. We have jurisdiction over Trans' appeal pursuant to 28 U.S.C. Sec. 1291.

Trans alleges that as part of a nationwide conspiracy to monopolize the "on-airport car rental market," the defendants prevented Trans from obtaining on-airport car rental concessions at a number of airports in the western United States. Trans contends that the defendants excluded it from those airports through conduct that is not protected by the Noerr-Pennington doctrine: bribing airport officials, making bad-faith misrepresentations to them, fixing prices and submitting them to airport authorities for summary approval, and denying

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Trans access to the decision-making process of airport authorities. Cf. Budget, 693 F.2d at 85-86 n. 1 (plaintiff's allegations of such conduct, which "Noerr-Pennington might not protect," were insufficient to prevent entry of summary judgment in favor of defendants because plaintiff "presented no evidence to support [its] allegations").

The parties took extensive discovery in the consolidated actions. After Trans filed suit in February, 1979, more than 150 witnesses were deposed, including public officials and employees and ex-employees of the defendants. The defendants objected to and never answered the interrogatories filed by Trans on October 7, 1980. However, Trans never moved either to compel answers to its interrogatories or for the imposition of discovery sanctions against the defendants.

After the plaintiff indicated its intention to appeal the district court's grant of summary judgment in the Budget case, the court stayed the proceedings in the remaining consolidated cases. We denied Trans' petition for a writ of mandamus compelling the court to lift the stay. After we decided the Budget case, Trans informally requested the district court to lift the stay to allow it to complete discovery on the issues raised in the instant appeal. The court responded in a letter dated December 1, 1982 that it opposed a general lifting of the stay because of the possibility of Supreme Court review of our decision in Budget. The court indicated, however, that it would consider particularized discovery requests, such as a request to depose a particular individual, if they were supported by a showing of the basis for believing that the discovery would produce material evidence and the reasons why delay would result in prejudice. Trans then formally moved for an order vacating the stay. The court denied the motion on February 3, 1983 because the plaintiff in Budget still had the opportunity to petition the Supreme Court for a writ of certiorari and because Trans had not submitted any particularized discovery requests in accordance with the court's December 1 letter.

At a status conference held on October 7, 1983, the district court extensively addressed the issue of discovery. In an effort to limit discovery to the issues presented in the defendants' motions for summary judgment, the court instructed counsel for the plaintiffs to 1) address the merits of the motions on the facts presented by the defendants, and 2) identify issues that required additional discovery, identify the evidence the party expected to produce, and prepare an appropriate discovery program. Trans failed to make a particularized request for additional discovery before the court granted the defendants' motion for summary judgment on March 16, 1984.


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