Robertson's Battery Terminal, Inc. v. Pacific Chloride, Inc., 91-5918

• Decision Date: 04 May 1992
• Docket Number: No. 91-5918,91-5918
• Citation: 961 F.2d 1578
• Parties: 1992-1 Trade Cases P 69,809 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. ROBERTSON'S BATTERY TERMINAL, INC., William D. Robertson, and Sharon Robertson, Plaintiffs-Appellants, v. PACIFIC CHLORIDE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1578

961 F.2d 1578

1992-1 Trade Cases P 69,809

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

ROBERTSON'S BATTERY TERMINAL, INC., William D. Robertson, and Sharon Robertson, Plaintiffs-Appellants, v. PACIFIC CHLORIDE, INC., Defendant-Appellee.

No. 91-5918.

United States Court of Appeals, Sixth Circuit.

May 4, 1992.

Before RALPH B GUY, JR. and BATCHELDER, Circuit Judges, and SPIEGEL, District Judge. ^*

PER CURIAM.

Plaintiffs-appellants, Robertson's Battery Terminal, Inc. ("Battery Terminal"), William Robertson ("Robertson"), and Sharon Robertson, appeal the district court's judgment for defendant-appellee, Pacific Chloride, Inc. ("PCI"), following a bench trial in this action based on the Robinson-Patman Price Discrimination Act ("Act"), 15 U.S.C. Section 13(a), and on allegedly outstanding warranty claims and unpaid billing credits. We affirm the judgment of the district court.

I.

PCI is a manufacturer of industrial batteries. Battery Terminal, previously a distributor for GNB, Inc. ("GNB"), a former competitor of PCI, entered into a sales agreement and a consignment agreement with PCI in 1986, ¹ by the terms of which Battery Terminal agreed to solicit sales of PCI products, implement PCI's warranty program, and follow PCI's sales and service policies, which required Battery Terminal to service PCI products, including batteries. Typically, Battery Terminal would forward customers' orders to PCI, which would bill the customer directly and pay Battery Terminal a commission. Occasionally, Battery Terminal would purchase products from PCI on credit, at a rate based on a discount multiplier, and resell them to customers.

PCI offered two warranties on its batteries: the "heavyweight" and the "diamond." ² Different multipliers applied to Battery Terminal's purchase of PCI batteries, depending on the type of battery and warranty. The consignment agreement provided that Battery Terminal would keep in stock a supply of batteries and also provided that, if a battery were on consignment for six months, Battery Terminal would have the option of purchasing the battery or returning it to PCI. ³

In August of 1987, PCI announced to its customers that its parent company had purchased a controlling interest in GNB, but that PCI and GNB would continue to operate separately. In October of 1987, a PCI employee, Jim Hellem, helped Robertson prepare a bid proposal for submission to General Electric ("GE"). On November 23, the day the bids were due, as Robertson was en route to GE to submit the bid proposal, he was informed by Hellem via telephone that a GNB representative had obtained Battery Terminal's pricing information from PCI and had stated that GNB intended to submit to GE a bid below Battery Terminal's cost. Robertson terminated the call and did not call Hellem back, despite the fact that he knew Hellem was prepared to quote him a lower price on these products for use in the GE bid. Neither Battery Terminal nor GNB was awarded the GE bid.

On February 24, 1988, Robertson was informed that Battery Terminal was required to pay PCI $15,706.10 in order to keep Battery Terminal's account current. On March 15, 1988, PCI sales representatives were notified, in writing, that PCI and GNB would be merged. In May of 1988, because Battery Terminal had had nineteen batteries on consignment for more than six months, and following a request for return or payment in accordance with Battery Terminal's consignment agreement with PCI, PCI billed Battery Terminal $18,450.00 for these batteries. On July 21, 1988, following a determination by the Quality Control Manager for PCI that a Battery Terminal customer had abused four PCI batteries, PCI rejected the recommendation of Battery Terminal that these batteries be replaced pursuant to warranty. By April of 1989, Battery Terminal owed PCI in excess of $118,000.

II.

The factual determinations of a district court sitting without a jury may not be set aside by a reviewing court unless clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1984); Sawyer v. Arum, 690 F.2d 590, 591-92 (6th Cir.1982) (factual determinations of district court not set aside unless reviewing court left with definite and firm conviction that a mistake was made).

Appellants' first claim, that PCI violated the Act ⁴ by having quoted a lower price to the GNB sales representative than to Battery Terminal for use in the GE bid proposal, lacks merit. This court has held that, "[a]s a basic pre-condition for a violation of the statute, the plaintiff must establish that the defendant made a sale to each of two separate and distinct purchasers." Shavrnoch v. Clark Oil and Refining Corp., 726 F.2d 291, 295 (6th Cir.1984) (emphasis added). See also Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 615 (4th Cir.1985) ("[T]wo comparable, completed sales [constitute] one of the jurisdictional prerequisites for establishing a violation of Section 2(a) of Robinson-Patman.") The district court found that neither GNB nor Battery Terminal was awarded the GE bid and, therefore, there was no sale by PCI to either GNB or Battery Terminal. No evidence of any other unlawfully discriminatory sales to anyone was presented by Battery Terminal or the Robertsons. Because the requirement of two completed sales was not met, there could be no violation of the Act. ⁵

Appellants' claim based on outstanding...