Stearns Airport Equipment Co., Inc. v. Fmc Corp.

• Citation: 977 F.Supp. 1263
• Decision Date: 31 May 1996
• Docket Number: No. 4:95-CV-880-A.,4:95-CV-880-A.
• Parties: STEARNS AIRPORT EQUIPMENT CO., INC., Plaintiff, v. FMC CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Texas

977 F.Supp. 1263

STEARNS AIRPORT EQUIPMENT CO., INC., Plaintiff, v. FMC CORPORATION, Defendant.

No. 4:95-CV-880-A.

United States District Court, N.D. Texas, Fort Worth Division.

May 31, 1996.

COPYRIGHT MATERIAL OMITTED

Eric Nevins Whitney, Lynn Stodghill Melsheimer & Tillotson, Dallas, TX, Robert William Kantner, Cynthia Lee Dow, Baker & Botts, Dallas, TX, for Stearns Airport Equipment Co., Inc.

Walter Andrew Herring, Fulbright & Jaworski, Dallas, TX, Layne E. Kruse, Frank Griffith Jones, Fulbright & Jaworski, Houston, TX, Hugh Gottschalk, Terence M. Ridley, Otten Johnson, Robinson Neff & Ragonetti, Denver, CO, for FMC Corp.

MEMORANDUM OPINION AND ORDER

McBRYDE, District Judge.

Came on for consideration the motion of defendant, FMC Corporation, for partial summary judgment. The court, having considered the motion, the response of plaintiff, Stearns Airport Equipment Co., Inc., the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted in part.

I. Plaintiff's Claims

On December 4, 1995, plaintiff filed its original complaint in this action. On April 30, 1996, having first obtained leave of court, plaintiff filed its first amended complaint. In it, plaintiff asserts five causes of action, to wit: violations of § 2 of the Sherman Act (count one), price discrimination in violation of § 2(a) of the Robinson-Patman Act (count two), violations of § 1 of the Sherman Act (count three), unfair competition (count four), and tortious interference (count five). Plaintiff alleges that it and defendant are competitors in the business of manufacturing passenger boarding bridges and walkways for airports and that they are, for all practical purposes, the only competitors in the market for these products in the United States. Plaintiff alleges that defendant, which commands an eighty percent share of the market, has engaged in conduct designed to drive plaintiff from the market.

II. Defendant's Motion for Partial Summary Judgment

Defendant seeks judgment as a matter of law that plaintiff take nothing on its claims set forth in counts two, three, four, and five. Defendant maintains that summary judgment is appropriate for the following reasons: As to count two, the Robinson-Patman Act does not apply to sales to governmental entities and can only apply to sales of "commodities of like grade and quality." As to count three, there is no conspiracy when a buyer decides to award a contract to a seller and, even if a conspiracy could be shown in this case, application of such theory is barred by the Noerr-Pennington Doctrine. As to counts four and five, the claims of unfair competition and tortious interference are preempted by the Airline Deregulation Act of 1978. And, finally, defendant urges that it cannot be held liable for any conduct prior to May 27, 1994, the date it first entered the business of manufacturing and selling passenger boarding bridges.

III. Applicable Summary Judgment Principles

A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256, 106 S.Ct. at 2510, 2514. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s][its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir.1984).

The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552-53. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597, 106 S.Ct. at 1361-62.

Summary judgment is less common in antitrust cases, which typically are more complicated and more difficult to resolve on the basis of a written record alone. Consolidated Metal Prods., Inc. v. American Petroleum Inst., 846 F.2d 284, 288 (5th Cir.1988). Although sparingly used, however, summary judgment may be appropriate in such cases. Munitrad Systems, Inc. v. Standard & Poor's Corp., 672 F.2d 436, 440 (5th Cir. 1982).

IV. Count Two

In count two, plaintiff alleges that defendant has engaged in price discrimination in violation of § 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a). Plaintiff alleges that defendant has discriminated in the prices it has charged in contemporaneous sales to different purchasers of commodities of like grade and quality depending on whether it was able to persuade the purchaser not to request bids. When plaintiff bid against defendant, defendant priced its passenger boarding bridges and walkways at predatory levels.

Defendant first argues that plaintiff cannot prevail on this ground because sales of goods to governmental entities are exempt from the Robinson-Patman Act. See Jefferson County Pharmaceutical Ass'n v. Abbott Labs., 460 U.S. 150, 171, 103 S.Ct. 1011, 1024, 74 L.Ed.2d 882 (1983) (Stevens, J., dissenting); Champaign-Urbana News Agency, Inc. v. J.L. Cummins News Co., 632 F.2d 680, 688 (7th Cir.1980) (both noting that federal government purchases are not covered by the Act). Plaintiff argues that there is an exception to the "state action" doctrine under Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). That exception applies to claims under the Sherman Act, however, and the court is not aware of any authority that would support its application to the Robinson-Patman Act. Plaintiff further argues that an exception arises out of Jefferson County because, by buying passenger boarding bridges and leasing them to airlines, airport authorities are in competition with plaintiff and defendant. The court does not accept the argument that purchasers who are not in the resale business are in competition with the parties to this action. Clearly, the Robinson-Patman Act does not apply to leases. Export Liquor Sales, Inc. v. Ammex Warehouse Co., 426 F.2d 251, 252 (6th Cir. 1970), cert. denied, 400 U.S. 1000, 91 S.Ct. 460, 27 L.Ed.2d 451 (1971).

The court does note that plaintiff's complaint is not limited to sales to governmental entities by defendant. To the extent that plaintiff asserts claims based on contracts combinations, or conspiracies with consultants, general contractors, and/or airlines, these claims are not addressed by the summary judgment motion. See First amended complaint at ¶ 46.

As an alternative, defendant argues that the passenger boarding bridges are not commodities of like grade and quality so as to fall within the Robinson-Patman Act. 15 U.S.C. § 13(a). Defendant argues that its sales of passenger boarding bridges are more in the nature of construction contracts to which the act does not apply. See Ideal Plumbing Co. v. Benco, Inc., 382 F.Supp. 1161, 1165-67 (W.D.Ark.1974), aff'd, 529 F.2d 972 (8th Cir.1976). Although defendant makes a strong argument, plaintiff has come forward with summary judgment evidence to raise a fact issue as to whether the bridges should be considered commodities. See supplement to plaintiff's response to defendant's motion for partial summary judgment, Exhibit A, excerpts from the deposition of Kenneth Wiseman. Thus, even if the motion addressed the alleged contracts, combinations or conspiracies with persons other than airport authorities, there would be a fact issue on this ground.

V. Count Three

In count three, plaintiff alleges that defendant violated § 1 of the Sherman Act by entering into contracts, combinations, and/or conspiracies to exclude plaintiff from bidding on projects and thereby unreasonably restrain trade and affect interstate commerce. 15 U.S.C. § 1.

Defendant first alleges that plaintiff cannot prove any unlawful contract, combination, or conspiracy that restrained trade. In response, plaintiff argues that defendant has misconstrued its complaint. Nevertheless, plaintiff has not raised any genuine fact issue with regard to the existence of a conspiracy. Plaintiff's only "evidence" pertinent to this issue is contained in the affidavit of Richard Pell attached to its summary judgment response. In it, Pell merely states his belief that defendant conspired with purchasers. No probative summary judgment evidence is proffered on this ground.

Defendant also argues that this claim is barred by the Noerr-Pennington Doctrine. The doctrine is based on United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14...