845 F.2d 802 (9th Cir. 1988), 86-2619, McGlinchy v. Shell Chemical Co.

Docket Nº:86-2619.
Citation:845 F.2d 802
Party Name:William J. McGLINCHY; Dan-De Products Corporation, a California corporation, Plaintiffs-Appellants, v. SHELL CHEMICAL CO.; Shell International Chemical Company, Ltd.; Pecten Chemicals, Inc.; Shell Oil Company; Royal Dutch Shell; Shell International Trading Co.; United States Brass Corp.; Qest Plumbing Products; Plastic Pipe Fittings Association, De
Case Date:April 22, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 802

845 F.2d 802 (9th Cir. 1988)

William J. McGLINCHY; Dan-De Products Corporation, a

California corporation, Plaintiffs-Appellants,


SHELL CHEMICAL CO.; Shell International Chemical Company,

Ltd.; Pecten Chemicals, Inc.; Shell Oil Company; Royal

Dutch Shell; Shell International Trading Co.; United

States Brass Corp.; Qest Plumbing Products; Plastic Pipe

Fittings Association, Defendants-Appellees.

No. 86-2619.

United States Court of Appeals, Ninth Circuit

April 22, 1988

Argued and Submitted Dec. 16, 1987.

As Amended on Denial of Rehearing and Rehearing En Banc July 11, 1988.

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[Copyrighted Material Omitted]

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Lawrence L. Curtice, Himelstein, Savinar, Petrocelli and Curtice, Patrick H. Fabian and Richard G. Krenz, Fabian, Graham and Englese, San Francisco, Cal., for plaintiffs-appellants.

Raymond V. McCord, Shell Oil Co., Los Angeles, Cal., James J. Garrett, Richard G. Seeborg, Thomas Reilly, Morrison & Foerster, San Francisco, Cal., for Shell Oil Co., Shell Chemical Co. and Pecten Chemicals, Inc.

Jan T. Chilton, Severson, Werson, Berke & Melchior, San Francisco, Cal., for U.S. Brass Corp.

Max R. Shulman, Robert N. Feltoon, Cravath, Swaine & Moore, David A. Barrett, Duker & Barrett, New York City, David M. Heilbron, McCutchen, Doyle, Brown and Enersen, San Francisco, Cal., for Shell Intern. Chemical Co. Ltd., defendants-appellees.

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

Before CHOY, GOODWIN and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Appellants William McGlinchy and Dan-de Products Corporation filed claims against various defendants for antitrust violations, breach of contract, and related torts. They appeal from the district

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court's (1) grant of summary judgment in favor of certain defendants; (2) denial of appellants' motion to amend their complaint; (3) grant of judgment on the pleadings for failure to state an antitrust claim concerning the polybutylene market; (4) dismissal of the antitrust claims for lack of subject matter jurisdiction; and (5) dismissal of the claims against Shell International Chemical Company for lack of personal jurisdiction. We affirm.


In 1977 Shell Chemical Company purchased all the patents, rights, and commercial production facilities for polybutylene (PB) from Whetco Company. PB resin is used to manufacture various products, including piping designed to carry water.

In 1978 William McGlinchy entered into an oral agreement with Shell Chemical to promote the sale of PB pipe grade resin in Southeast Asia. On January 25, 1979, Dan-de Products Corporation, owned and operated by McGlinchy, entered into a written contract with Shell Chemical for the same purpose. The written contract designated Dan-de as Shell Chemical's representative for the promotion and solicitation of orders for PB pipe resin in designated countries throughout Southeast Asia. The contract expressly provided that it would remain in force for one year, ending December 31, 1979, with year-to-year renewal subject to termination at year-end upon 30 days prior notice. The written contract was extended in May 1979 to include Saudi Arabia.

On April 6, 1981 McGlinchy entered into a written contract with Shell Chemical to promote PB resin in South America. In June 1980 Dan-de and Shell International Chemical Company (SICC) entered into a similar written contract covering sale and promotion of PB resin in Africa and the Middle East.

On November 5, 1982 Shell Chemical notified McGlinchy and Dan-de in writing that the contract for promotion and sale of PB resin in Southeast Asia and Saudi Arabia would be terminated. The contract remained in force through December 31, 1982, and Shell Chemical continued to pay Dan-de commissions on actual sales through the end of 1983 as the contract required. The contract between Shell Chemical and McGlinchy covering PB resin sales and promotion in South America and the contract between SICC and Dan-de covering Middle Eastern and African PB resin sales were also terminated in 1982 by Shell Chemical and SICC, respectively, pursuant to the terms of those contracts.

In February 1984 McGlinchy and Dan-de (collectively, appellants) instituted this action against Shell Oil Company, Shell Chemical Co. and Pecten Chemicals, Inc. (collectively, Shell Oil defendants), SICC, and other Shell-related entities. The original complaint alleged federal and state antitrust violations, as well as breach of contract and related torts. Appellants filed a first amended complaint on May 29, 1984.

SICC subsequently moved to dismiss for lack of personal jurisdiction, failure to state a claim upon which relief can be granted, and lack of subject matter jurisdiction pursuant to 15 U.S.C. Sec. 6a. Shell Oil defendants joined in the motion to dismiss for lack of subject matter jurisdiction. On November 30, 1984, the district court granted SICC's motion to dismiss for lack of personal jurisdiction and further granted the motion to dismiss joined by Shell Oil defendants for lack of subject matter jurisdiction under section 6a.

Appellants next moved for leave to file a second amended complaint to add several manufacturers of PB pipe fittings as defendants and to add new antitrust claims relating to the promotion and sale of such fittings. On March 1, 1985 the district court denied appellants' motion to file a second amended complaint but allowed them to add four causes of action against newly named PB pipe fitting defendants. Appellants then filed an amended first amended complaint (AFA complaint) against the Shell Oil defendants and the PB pipe fitting defendants. 1

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Shell Oil defendants moved for judgment on the pleadings with respect to the federal and state antitrust claims relating to PB pipe fittings. The PB pipe fitting defendants joined in the motion, which the district court granted on June 7, 1985.

Subsequently the district court denied motions brought by Shell Oil defendants for summary judgment on appellants' breach of contract claim and for judgment on the pleadings on the remaining claims.

In December 1985 appellants again attempted to amend their complaint to add claims for relief against Shell Oil defendants for fraud and negligent interference with contract. On February 7, 1986 the district court denied the motion and subsequently set the case for trial in May 1986.

After all the parties had taken the depositions of each side's damages experts and discovery had closed, Shell Oil defendants moved the court to exclude the testimony of appellants' damages experts and to enter judgment against appellants for failure to offer a competent theory proving the fact or amount of damages. The district court granted Shell Oil defendants' motion on May 31, 1986, and entered judgment in their favor on June 5, 1986. Appellants' motion for reconsideration was subsequently denied, and appellants timely appealed.


The final proceedings in the district court dealt with appellants' only remaining claims: Shell Oil defendants' breaches of contract (including promissory estoppel and quasi-contract) and Shell Oil defendants' "tortious interference" with appellants' contracts and business opportunities. Appellants contend that the district court erred in excluding damages studies prepared by appellants' expert witnesses as well as the future testimony of those expert witnesses. Appellants also contend that the district court erred in granting summary judgment in favor of Shell Oil defendants for appellant's failure to show a genuine issue about damages. We affirm both the exclusion of evidence and the grant of summary judgment.


We review a district court's evidentiary decisions for an abuse of discretion. Taylor v. Burlington Northern R.R. Co., 787 F.2d 1309, 1315 (9th Cir.1986); United States v. Solomon, 753 F.2d 1522, 1524 (9th Cir.1985) (expert witnesses).

The district court did not abuse its discretion in granting the Shell Oil defendants' motion to exclude the experts' damages studies and future testimony. The studies did not meet the standard that, in the context of a motion for summary judgment, an expert must demonstrate his competence or back up his opinion with specific facts. Compare Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir.1985) (per curiam) (weighing Fed.R.Civ.P. 56(e) and Fed.R.Evid. 705) with United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir.1981). Both the studies and testimony were properly excluded because any probative value was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403. See Solomon, 753 F.2d at 1525.

Appellants' final list of witnesses designated Stephen Jizmagian as an expert witness on damages. As his deposition shows, appellants asked Jizmagian to forecast future lost profits to the McGlinchy companies after a change in relations between the McGlinchys and Shell. On the one hand, Jizmagian stated that he quantified in dollar terms the effect of the act or acts by Shell Oil Company, and that he attributed all of the future lost profits to acts of Shell Oil Company. On the other hand, Jizmagian acknowledged that he did not relate the loss to specific acts and, indeed, could not recall any specific acts by Shell Oil defendants. He added that the cause of the decline in sales theoretically could have been anything. Given this inconsistency, Jizmagian's report and testimony would pose a great danger of confusing the fact and cause of damages with the amount of damages.

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Even as a "before and after" assessment of appellants' damages from a hypothetical injury, Jizmagian's study was hopelessly flawed. He did not confirm that relevant market conditions were the same before and after the time the injury was alleged to have occurred. See Pacific Coast Agric. Export Ass'n v. Sunkist...

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