Kickapoo Oil Co. v. Clark Oil & Refining Corp.

• Decision Date: 19 December 1985
• Docket Number: No. 7-15.,7-15.
• Citation: 788 F.2d 11
• Parties: KICKAPOO OIL COMPANY, INCORPORATED, Plaintiff-Appellant, v. CLARK OIL & REFINING CORPORATION, Defendant-Appellee.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

788 F.2d 11

KICKAPOO OIL COMPANY, INCORPORATED, Plaintiff-Appellant, v. CLARK OIL & REFINING CORPORATION, Defendant-Appellee.

No. 7-15.

Temporary Emergency Court of Appeals.

Argued September 12, 1985.

Decided December 19, 1985.

Thomas J. Hamilton and Steven Schaars, Collier, Shannon, Rill & Scott, Washington, D.C., were on brief, for plaintiff-appellant.

Wayne E. Babler, Jr. and Nancy K. Peterson, Quarles & Brady, Milwaukee, Wis., were on brief, for defendant-appellee.

Before GIGNOUX, PECK and BONSAL, Judges.

JOHN W. PECK, Judge.

In September 1978, Kickapoo Oil Company, Inc. ("Kickapoo") filed this action against Clark Oil and Refining Corporation ("Clark") in the United States District Court for the Western District of Wisconsin. Kickapoo is an unbranded independent marketer of motor gasoline and other petroleum products; Clark is a refiner of motor gasoline and other petroleum products. In the complaint, Kickapoo alleged that from November 1, 1973 through June 30, 1976, Clark overcharged Kickapoo on purchases of motor gasoline in violation of the Mandatory Petroleum Allocation and Price Regulations, 10 C.F.R. Parts 211 and 212, promulgated pursuant to the Emergency Petroleum Allocation Act, 15 U.S.C. §§ 751 et seq. Kickapoo sought to recover under § 210 of the Economic Stabilization Act¹ from Clark the full amount of the alleged overcharges, together with interest, incidental and consequential damages, and attorney fees. Kickapoo alleged that the overcharges were attributable to:

(i) Clark's failure to place Kickapoo in the same class of purchaser as similar purchasers from Clark to which Clark has charged comparable prices for comparable product pursuant to customary price differential between those purchasers and other purchasers from Clark; (ii) Clark's failure to preserve customary price differentials which existed on and before May 15, 1973 between Kickapoo and dissimilar purchasers of motor gasoline from Clark; (iii) Clark's improper application of the May 15, 1973 transaction which it used in computing the weighted average price for the motor gasoline which it sold to Kickapoo.

Complaint, ¶ 15. Kickapoo alleged that the improper calculations of the maximum allowable prices resulted in an overcharge of approximately 2.75 cents per gallon.

During the course of discovery, Clark served Kickapoo with interrogatories in November 1979, asking in Interrogatory No. 14:

Identify separately each and every purchase of motor gasoline by Kickapoo from Clark for which plaintiff contends Clark charged a price in excess of the maximum allowable price, stating ... (f) the amount of overcharges in cents per gallon, and (g) how the overcharge amount was determined by plaintiff.

Kickapoo responded that it was unable to fully answer this interrogatory until discovery had been provided by Clark. In Interrogatory No. 31, Clark asked:

Describe all facts upon which is based the allegation that the excess charged by Clark was 2.75 cents per gallon as alleged in paragraph 14 of the Complaint, and identify all documents and other sources of information upon which such allegation is based.

Kickapoo responded that the bases for the allegations were fully set forth in the complaint and that further details would be given after discovery was provided by Clark.

In the second set of interrogatories, propounded by Clark to Kickapoo in February 1981, Kickapoo identified Peter Johnson and Cliff Lawrence as persons having personal or expert knowledge of how Kickapoo arrived at the determination that the average overcharge was 2.75 cents.² (Interrogatories II-1-2.) Throughout its responses to the second set of interrogatories, Kickapoo reiterated that it was unable to answer until further discovery, and would supplement its answers accordingly. Interrogatory II-9 asked:

Identify each expert whom you expect to call at trial as a witness and with respect to each such expert state:

A. The subject matter upon which such expert is expected to testify; and

B. The substance of the facts and opinions about which such expert is expected to testify.

Kickapoo responded that it would supplement the answer when the information became available.

On September 14, 1982, at a pretrial conference, the court ordered:

Both parties are to proceed with the conducting of formal discovery. Discovery is tentatively scheduled for completion by February 1, 1983, and the case is tentatively scheduled for trial ... on April 11, 1983.

In November 1982, Clark asked in a third set of interrogatories about Kickapoo's contentions, theories and expert opinions. Interrogatories III-15-18 and Kickapoo's responses are set forth below:

INTERROGATORY NO. III-15:

For each month between August 20, 1973 and January 27, 1981, set forth separately for each class of purchaser, what plaintiff contends was defendant's maximum lawful selling price to such class of purchaser for such month. If plaintiff has alternate theories or contentions, which it intends to present at trial, answer this interrogatory separately for each such theory or contention and describe the differences in the methods used in deriving such maximum lawful selling prices.

RESPONSE TO INTERROGATORY NO. III-15:

After Kickapoo has completed the computations, it will provide a response.

INTERROGATORY NO. III-16:

Set forth what plaintiff contends are the proper weighted average selling prices for each class of purchaser of defendant in transactions on May 15, 1973, or the last preceding date on which a transaction occurred if none on May 15, 1973, for purposes of plaintiff's calculation of defendant's maximum lawful selling prices to each such class of purchaser under the refiner price rule. If plaintiff has alternate theories or contentions which it intends to present at trial, answer this interrogatory separately for each such theory or contention and describe the differences in the methods used in deriving such weighted average selling prices.

RESPONSE TO INTERROGATORY NO. III-16:

After Kickapoo has completed its computations, it will provide a response.

INTERROGATORY NO. III-17:

State whether plaintiff will maintain at trial that defendant placed plaintiff in an improper class or purchaser, and, if so, identify all customers and all transactions (setting forth the product, grade, volume, and price paid) which will be used by plaintiff in determining the weighted average selling price to plaintiff's class of purchaser for purposes of plaintiff's calculation of defendant's maximum lawful selling price to plaintiff's class of purchaser.

RESPONSE TO INTERROGATORY NO. III-17:

Kickapoo will maintain at trial that Clark placed plaintiff in an improper class of purchaser. After Kickapoo has completed its computations, it will supplement its response.

INTERROGATORY NO. III-18:

State whether plaintiff intends to offer expert testimony at trial on any issues, and, if so, identify all such experts setting forth name, address, qualification, and each issue with respect to which he will testify as an expert.

RESPONSE TO INTERROGATORY NO. III-18:

Kickapoo has not determined whether an expert witness will testify during Kickapoo's presentation of this case and, accordingly, has not yet identified any expert for trial testimony.

In response to interrogatories propounded by Kickapoo, Clark stated that it used the following amounts in determining the maximum allowable price as it understood the Regulations with respect to purchases made by Kickapoo from Clark:

                                 Premium   Regular
                  Granville       .23080    .21371
                  Green Bay       .23180    .21471
                

Clark also set forth its prices as they were posted on May 15, 1973, for the unbranded wholesale class of purchaser, the class in which Clark placed Kickapoo:

                                 Premium   Regular
                  Granville        .1700    .1500
                  Green Bay        .1710    .1510
                

Clark admitted that its last sales of motor gasoline to a purchaser in the unbranded wholesale class of purchaser on or before May 15, 1973, excluding sales to Naph-Sol Refining Company, were as follows:

                                 Premium   Regular
                  Granville        .1535    .1360
                  Green Bay        .1556    .1390
                

On November 30, 1982, a status conference was held, and the court ordered: "All formal discovery in this case is to be completed by February 28, 1983." On February 3, 1983, however, the court granted Kickapoo's motion for a stay pending a final decision by this court in Mobil Oil Corp. v. DOE, 728 F.2d 1477 (Temp.Emer. Ct.App.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 3545, 82 L.Ed.2d 849 (1984), in which the validity of the equal application/deemed recovery rule found at 10 C.F.R. § 242.83 was at issue. Mobil was decided on December 20, 1983. No further proceedings occurred in the instant action until November 21, 1984, when another status conference was held. Counsel for Kickapoo failed to appear; counsel for Clark was present. A status conference order provided that the case would be set for trial for the week beginning February 4, 1985 and that a final pretrial conference would be held on January 10, 1985.

At the final pretrial conference on January 10, Kickapoo waived its demand for a jury trial and requested that the trial be postponed until February 21, 1985. The court granted the continuance and ordered that Kickapoo would have 6 3/4 hours to present its case, exclusive of cross-examination. The court cautioned that it would disfavor any attempt by Kickapoo "to produce a witness who will introduce a computer printout purportedly summarizing all of the issues in the case."

On February 11, 1985, the court granted Clark's motion for an order enforcing the discovery cutoff date. Also on February 11, Kickapoo served a summary judgment motion and a motion in limine to admit overcharges, asking that the court admit into evidence a computer printout as a summary of overcharges. Clark opposed the admission of the computer printout and the court reserved the ruling until trial. On the...