Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co.

• Decision Date: 18 August 1971
• Docket Number: Civ. A. No. 70-3.
• Citation: 330 F. Supp. 549
• Parties: ROSEMOUND SAND AND GRAVEL CO. v. LAMBERT SAND AND GRAVEL CO., Inc., et al.
• Court: U.S. District Court — Eastern District of Louisiana

330 F. Supp. 549

ROSEMOUND SAND AND GRAVEL CO. v. LAMBERT SAND AND GRAVEL CO., Inc., et al.

Civ. A. No. 70-3.

United States District Court, E. D. Louisiana, Baton Rouge Division.

August 18, 1971.

John L. Fulbright, Beaumont, Tex., L. B. Ponder, Jr., Ponder & Ponder, Amite, La., for plaintiff.

R. Boatner Howell, Jr., Baton Rouge, La., for Lambert Sand and Gravel Co.

Carlos G. Spaht, James F. Field, Kantrow, Spaht, Weaver & Walter, Baton Rouge, La., for Feliciana Sand and Gravel Co. and Holloway Gravel Co.

E. GORDON WEST, Chief Judge:

This is a suit for treble damages brought pursuant to Title 15 U.S.C.A. § 15, which provides that:

"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."

Plaintiff, Rosemound Sand and Gravel Company, is a partnership qualified to do business in Texas and Louisiana, and the defendants, Lambert Sand and Gravel Company, Inc., Holloway Gravel Company, Feliciana Sand and Gravel Company, Inc., and Allen Thomason, are all residents of Louisiana doing business only in the State of Louisiana. All defendants have filed motions to dismiss this suit on the ground that this Court lacks jurisdiction over the subject matter of the suit because of the fact that no interstate commerce is here involved. It is these motions that are now before the Court.

Interrogatories have been propounded and answered and extensive depositions have been taken and filed in the record. Thus, while being cognizant of the fact that summary judgment in anti-trust cases is not usually favored, Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969), there is more than ample probative evidence before this Court on which to base a decision on these motions without further evidentiary hearing. After due consideration of all of the evidence in this record, it is the opinion of this Court that the motions to dismiss for lack of jurisdiction should be granted.

Weymouth Construction Company (Weymouth) entered into a contract with the United States Corps of Engineers for the construction of certain concrete mattresses to be used to prevent erosion of the banks of the Mississippi River in West Feliciana Parish at St. Francisville, Louisiana. This job was known as the "Matfield Job." The defendants, all Louisiana citizens, each operate sand and gravel producing facilities in the St. Francisville area. In furtherance of their contract, Weymouth and others organized the plaintiff firm known as Rosemound Sand and Gravel Company (Rosemound) whose primary purpose it was to furnish sand and gravel for the Matfield Job. Rosemound was organized, according to its Articles of Partnership, as a "Limited Partnership" pursuant to the Texas Uniform Limited Partnership Act and as a "Partnership in Commendum" under Articles 2835-2851 of the Louisiana Revised Civil Code. It lists its principal place of business in Texas as Beaumont, and in Louisiana as "the Parish of West Feliciana." Rosemound purchased some of its equipment from Weymouth and Weymouth agreed to purchase the output of the Rosemound sand and gravel plant in West Feliciana Parish to the extent necessary to fulfill its contract with the Corps of Engineers for the Matfield Job. Plaintiff now contends that the defendants, after hearing of the arrangement between Weymouth and Rosemound, notified Weymouth that if it, Weymouth, purchased any of its needed sand and gravel from Rosemound that they, the defendants, would refuse to sell any sand and gravel to Weymouth if Rosemound was unable to furnish the required amounts of those materials to Weymouth. As a result thereof, according to the plaintiff, Weymouth refused to buy any sand and gravel from Rosemound because they believed that Rosemound might be unable to furnish the total amount of sand and gravel needed by Weymouth to fulfill its contract with the Corps of Engineers. Plaintiff alleges that as a result of these activities on the part of defendants, Rosemound has been reduced to a state of financial insolvency and it now demands of the defendants the sum of $447,000 as treble damages for the loss of its plant and the sum of $2,559,600 as treble damages for estimated loss of three years' profits, plus $75,000 as attorney's fees. All defendants move for summary judgment on the grounds that they are not engaged in interstate commerce and that their intrastate activities have no substantial effect on interstate commerce, and that therefore this Court is without jurisdiction over this case.

The uncontroverted affidavit of Sonny Johnston, President of Feliciana Sand and Gravel Company (Feliciana), states, inter alia, that (1) Feliciana is and has been engaged in the business of mining and selling sand and gravel solely within the confines of the State of Louisiana; (2) Feliciana's principal customers are ready mix concrete concerns and contractors operating in East Feliciana, West Feliciana, and Pointe Coupee Parishes; (3) Among its customers is Weymouth, the prime contractor for the Matfield Job in St. Francisville, Louisiana. The Matfield Job is a ready mix concrete operation by which sand and gravel from the St. Francisville area is made into concrete blocks and sold to the United States Corps of Engineers for placement on the banks of the Mississippi River in West Feliciana Parish, which is wholly within the confines of the State of Louisiana; (4) In 1969 Feliciana sold sand and gravel to the Weymouth Construction Company and the Fordice Construction Company, the latter company having formed a joint venture partnership with Weymouth for the Matfield Job; (5) Feliciana was not engaged in the sale or purchase of any materials destined for consumption or transportation outside of the State of Louisiana; (6) No sand or gravel mined or produced outside the State of Louisiana has ever been delivered or offered for delivery to the Matfield Job by Feliciana; (7) Feliciana never sold any sand or gravel outside of Louisiana nor did it ever bid on any works outside of Louisiana; and (8) Rosemound has never been in substantial commercial production of sand and gravel and has never made any sales outside the State of Louisiana.

The uncontroverted affidavits of H. H. Holloway, Jr., President of Holloway Gravel Company (Holloway), and Paul A. Lambert, President of Lambert Sand and Gravel Company (Lambert), are essentially the same as the affidavit of Mr. Johnston except that they relate to the operations of Holloway and Lambert.

Answers to the interrogatories propounded by the plaintiff reveal the following with regard to Holloway: (1) Holloway did not deliver any sand, gravel, or other products outside of the State of Louisiana during 1968 and 1969 nor were any of the products sold by it used outside of the State of Louisiana; (2) The only customer to whom sand and gravel was sold who had an address outside of the State of Louisiana was Weymouth Construction Company, whose address was shown to be Memphis, Tennessee. Weymouth was the major customer of Holloway in 1968-69, but all products purchased by it were received and used in the State of Louisiana at St. Francisville on the Matfield Job; (3) In 1968-69 Holloway, as purchasing agent for South Shore Railway Company, to whom it had leased its assets in 1964, made 128 purchases of tools, supplies, and equipment. Of these, only nine were made from out of state sources. These nine amounted to $30,176.30 out of a total of $136,199.12. Two purchases out of these nine accounted for $29,030.45 of this $30,176.30. These two purchases were for steel castings, wire, and electrode guides. These purchases as stated above, were of tools, supplies, and equipment, and did not in any way constitute purchases of equipment for resale. (This Court, in Bettie Mae Bradford Robinson v. South Shore Railway Company,...