Airport Car Rental Antitrust Litigation, In re, RENT-A-CA

• Decision Date: 07 October 1985
• Docket Number: INC,No. 84-1778,RENT-A-CA,84-1778
• Citation: 766 F.2d 1292
• Parties: 1985-2 Trade Cases 66,709 In re AIRPORT CAR RENTAL ANTITRUST LITIGATION. TRANS, Plaintiff-Appellant, v. The HERTZ CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1292

766 F.2d 1292

1985-2 Trade Cases 66,709

In re AIRPORT CAR RENTAL ANTITRUST LITIGATION TRANS RENT-A-CAR, INC., Plaintiff-Appellant, v. The HERTZ CORPORATION, et al., Defendants-Appellees.

No. 84-1778.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 16, 1985.

Withdrawn from Submission Feb. 28, 1985.

Resubmitted May 3, 1985.

Decided Oct. 7, 1985.

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.

ORDER

The opinion and dissent filed July 22, 1985, are withdrawn and the attached opinion and dissent are ordered filed.

FARRIS, Circuit Judge:

BACKGROUND

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 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.

                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")
                

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.

STANDARDS OF REVIEW

"The granting of a summary judgment is reviewable de novo." Haluapo v. Akashi Kaiun, K.K., 748 F.2d 1363, 1364 (9th Cir.1984). "In reviewing a grant of summary judgment, our task is identical to that of the district court. The district court's grant of summary judgment will be affirmed if, viewing the evidence and the inferences therefrom in the light most favorable to the party opposing the motion for summary judgment, there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law." RFD Publications, Inc. v. Oregonian Publishing Co., 749 F.2d 1327, 1328 (9th Cir.1984). "[S]ummary judgment may be appropriate in antitrust actions when there is no 'significant probative evidence tending to support the complaint.' " Robert's Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403, 1406 (9th Cir.1984) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968)).

A district court's "decision to allow or deny discovery is reviewable only for abuse of discretion." Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984).

I. Noerr-Pennington Doctrine

Trans' case suffers from the same defect that was fatal to the plaintiff's case in Budget: Trans has presented no relevant evidence to support its allegations that the defendants prevented it from obtaining concessions at airports by fixing prices, bribing and making misrepresentations to airport officials, or denying Trans access to decision-making authorities. As in Budget, we therefore need not reach the question of whether or not the conduct alleged by Trans is protected from antitrust scrutiny by the Noerr-Pennington doctrine.

A. Price Fixing; Misrepresentations; Bribery and Coercion

Trans cites five depositions of former employees of the defendants and the transcript of the testimony of one of those five ex-employees before the Federal Trade Commission in support of its allegations of price fixing, misrepresentations, and bribery and coercion. To the extent that the depositions of Tom Aiston, W. Paul Ayres, and Fred Bailey and the transcript of Bailey's testimony before the FTC relate to airports from which Trans alleges it was illegally excluded, they concern causes of action that are time-barred. Aiston and Ayres last worked for Hertz in the western United States in 1969 and 1966, respectively. Bailey last worked for National in 1970. Trans filed its complaint on February 14, 1979. Causes of action accruing to Trans before February 14, 1975 are barred by the statute of limitations. 15 U.S.C. Sec. 15b; Program Engineering, Inc. v. Triangle Publications, Inc., 634 F.2d 1188, 1194 (9th Cir.1980). "A cause of action accrues each time a plaintiff is injured by an act of the defendants." Id. Aiston, Ayres, and Bailey had no first-hand knowledge of acts of the defendants relating to the airports in question that took place within the limitation period. Trans' conclusory allegations of fraudulent concealment of the alleged antitrust violations are insufficient...