Delong Equipment Co. v. Washington Mills Abrasive Co., 86-8872

• Citation: 840 F.2d 843
• Decision Date: 23 March 1988
• Docket Number: No. 86-8872,86-8872
• Parties: 1988-1 Trade Cases 67,939 DELONG EQUIPMENT COMPANY, Plaintiff-Appellant, v. WASHINGTON MILLS ABRASIVE CO., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 843

840 F.2d 843

1988-1 Trade Cases 67,939

DELONG EQUIPMENT COMPANY, Plaintiff-Appellant, v. WASHINGTON MILLS ABRASIVE CO., et al., Defendants-Appellees.

No. 86-8872.

United States Court of Appeals, Eleventh Circuit.

March 23, 1988.

William E. Sumner, Sumner & Hewes, Stephen J. Anderson, Atlanta, Ga., for plaintiff-appellant.

Emmet J. Bondurant, Bondurant, Mixson & Elmore, Carolyn Rachel Gorwitz, Atlanta, Ga., for defendants-appellees.

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

Before TJOFLAT and ANDERSON, Circuit Judges, and ROETTGER ^*, District Judge.

ANDERSON, Circuit Judge:

In this appeal, Delong Equipment Company ("Delong"), plaintiff below, challenges the dismissal of defendants Robert Biebel ("Robert"), BCS Company, Inc. ("BCS"), and William Biebel ("William") from an antitrust action it brought in the Northern District of Georgia. For the reasons stated below, we reverse the dismissal of Robert and BCS and affirm the dismissal of William.

I. BACKGROUND

A. Standard of Review

In this case, the factual predicate for the district court's ruling was the complaint and the numerous affidavits filed by both sides. No evidentiary hearing was held. This procedure is within the court's discretion. Edwards v. Associated Press, 512 F.2d 258, 262 n. 8 (5th Cir.1975); ¹ Spelsberg v. Sweeney, 514 F.Supp. 622, 623 (S.D.Ga.1981).

This appeal involves motions to dismiss for ineffective service of process, lack of personal jurisdiction, and improper venue. See Fed.R.Civ.P. 12(b). In the context of such motions in which no evidentiary hearing is held, the plaintiff must present only a prima facie showing of venue and personal jurisdiction. Bracewell v. Nicholson Air Service, Inc., 748 F.2d 1499, 1504 (11th Cir.1984); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1232 (5th Cir.1973); Psychological Resources Support Systems v. Gerleman, 624 F.Supp. 483, 484 (N.D.Ga.1985). The facts as alleged in the complaint are taken as true, to the extent they are uncontroverted by defendants' affidavits. Black v. Acme Markets, Inc., 564 F.2d 681, 683 n. 3 (5th Cir.1977); National Egg Co. v. Leumi le-Israel B.M., 504 F.Supp. 305, 309 (N.D.Ga.1980). In addition, "[w]hen there is a battle of affidavits placing different constructions on the facts, the court is inclined to give greater weight, in the context of a motion to dismiss, to the plaintiff's version ...," particularly when "the jurisdictional questions are apparently intertwined with the merits of the case," as is true in this appeal. Psychological Resources Support Systems, 624 F.Supp. at 486-87. See also Vest v. Waring, 565 F.Supp. 674, 693 (N.D.Ga.1983) ("All pleadings and affidavits introducing evidence relating to jurisdictional facts are to be construed in the light most favorable to the plaintiff"). Consequently, the facts detailed below, distilled from the complaint and the affidavits of the parties, construe all reasonable inferences in favor of Delong.

B. Facts

Delong Equipment Company, a Georgia corporation, brought this antitrust action in the District Court for the Northern District of Georgia against three corporate and six individual defendants, ² alleging various violations of the Sherman, Clayton, and Robinson-Patman Antidiscrimination Acts, 15 U.S.C. Secs. 1-7, 12-15 and 26, and assorted other state law claims. The substantive claims in this case stem from the marketing, pricing, and supply of a product called "media" to certain companies in Georgia, South Carolina and Alabama. ³ Delong asserts that the defendants--a media manufacturer, a media distributor, and certain officers and directors of these companies-- conspired to restrain trade and monopolize the media market in the Georgia-Alabama-South Carolina tri-state area by segmenting the market, inflating the prices of "stock" media, excluding Delong from the market, and diverting Delong's customers to other media distributors in the area.

Delong is a nationwide distributor of equipment and supplies, such as media, for industrial processes. Much of Delong's business is focused in the Georgia-Alabama-South Carolina tri-state area. Defendant Washington Mills Ceramic Corporation, a subsidiary of defendant Washington Mills Abrasive Company, Inc. (collectively "Washington Mills"), manufactures media and sells this product nationwide through distributors. Washington Mills Ceramic Corporation is a Florida corporation whose registered principal place of business is Florida. Washington Mills Abrasive Company, Inc. is a Massachusetts corporation whose registered principal place of business is Massachusetts. Defendant BCS, a Connecticut corporation whose registered principal place of business is the United States Virgin Islands, is the sole New England distributor of Washington Mills media. BCS also distributes Washington Mills media in North Carolina, South Carolina and Florida. Among BCS' longstanding media customers is the Pratt & Whitney Aircraft Company plant in East Hartford, Connecticut. BCS also has serviced the Pratt & Whitney Aircraft plant in West Palm Beach, Florida. Defendant Robert Biebel is a vice-president and director of BCS and a Connecticut resident. Defendant William Biebel is a director and retired officer of BCS and a Connecticut resident.

Pratt & Whitney Aircraft Company ("Pratt & Whitney"), a manufacturer of aircraft engines, opened a plant in Columbus, Georgia in 1983. In anticipation of competing for the Pratt & Whitney (Columbus) media account, Delong became a Washington Mills distributor in 1982. In late 1982, Pratt & Whitney released certain specifications for the Columbus plant which required, among other things, that a large supply of media be available on 24-hour notice. Delong alleges that these specifications called for the use of a standard type of media carried in open stock by Washington Mills and other media manufacturers.

Shortly after Pratt & Whitney released the specifications, Delong alleges that Washington Mills informed it that the Pratt & Whitney plant required the use of a higher-priced "BCS" designated media, that the Pratt & Whitney account "belonged" to BCS, and that other media accounts in the area "belonged" to other Washington Mills distributors.

In its efforts to obtain the Pratt & Whitney account, Delong informed Pratt & Whitney that the "BCS" media was not a special type of media manufactured by Washington Mills but rather was a type of stock media with a proprietary label indicating the distributor. Pratt & Whitney then asked Washington Mills to provide Delong with the generic specifications of the "BCS" media it used. Washington Mills informed Delong that a new type of media, "5,000 P & W special," was required by the Pratt & Whitney specifications. Shortly thereafter, the 1982 Pratt & Whitney media specifications for the Columbus plant were revised to state that "5,000 P & W Special" media and two other specially designated Washington Mills media products were required. Delong contends that these specially designated "P & W" media, like the "BCS" media, are standard generic stock media sold at highly-inflated prices because of the proprietary labels.

In a meeting in Atlanta in early 1983, Robert Biebel, on behalf of BCS, met with Harold Delong, the president of Delong, to discuss the Pratt & Whitney (Columbus) account. Robert allegedly told Delong that the account "belonged" to BCS but that there was "plenty of money in it for both of us" if Delong would agree to sell Pratt & Whitney the higher-priced "BCS" media and to share the resulting profits with BCS. In consideration, BCS would provide Delong with technical assistance and expertise. Apparently, the 24-hour notice limitation prevented BCS from servicing the Columbus account itself and therefore it wanted to affiliate itself with a Georgia company that could meet the notice requirement. Delong declined to cooperate with BCS and thereafter secured the Pratt & Whitney (Columbus) account on its own.

As a Washington Mills distributor, Delong attempted to purchase the lower-priced stock media from Washington Mills to supply to the Pratt & Whitney Columbus plant. On occasion, Washington Mills complied with the order; at other times, Washington Mills shipped media with a proprietary designation to Pratt & Whitney and charged Delong the premium rate. Delong maintained the account until August of 1985, when it was terminated as a Washington Mills distributor.

Before the Pratt & Whitney (Columbus) media account was awarded to Delong, BCS supplied the Columbus plant with $57,000 worth of media, through Pratt & Whitney's East Hartford plant, which was used for "start-up" purposes. During the period in which Delong serviced the Columbus account, BCS shipped three small unsolicited orders of media to the Columbus plant. The total value of these shipments was less than $5,000. After Delong's termination as a Washington Mills distributor, BCS filled several additional media orders for the Columbus plant, the total value of which also was less than $5,000. BCS had little other contact with the Columbus facility. Robert, however, did visit the Columbus facility in 1984 during a flight layover at the Atlanta airport.

Delong also contends that BCS has transacted other business in the Northern District of Georgia, some of which directly pertains to antitrust violations alleged in the litigation. For example, Delong supplied media to Republic Airlines in Atlanta, which used the media to service its Pratt & Whitney engines. After receiving an initial shipment of stock media from Delong, Republic informed Delong that the Pratt & Whitney engine specifications required the use of "BCS" media. Delong examined the "BCS" media Republic had been using and determined that it was a mixture of three types of stock media packaged and sold together at a much higher price than those charged for the individual types of stock media. Delong contends that this...