Acoustic Systems Inc. v. Wenger Corp.

• Decision Date: 03 April 2000
• Docket Number: No. 99-50112,99-50112
• Citation: 207 F.3d 287
• Parties: (5th Cir. 2000) ACOUSTIC SYSTEMS INC, Plaintiff - Appellee, v. WENGER CORPORATION; STEVE BRIGHT, Defendants - Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 287

207 F.3d 287 (5th Cir. 2000)

ACOUSTIC SYSTEMS INC, Plaintiff - Appellee, v. WENGER CORPORATION; STEVE BRIGHT, Defendants - Appellants.

No. 99-50112

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

April 3, 2000

Appeal from the United States District Court for the Western District of Texas

Before DUHE, BARKSDALE, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Acoustic Systems, Inc. ("Acoustic") brought this antitrust suit, 15 U.S.C. 1, et seq., against the defendants, Wenger Corporation and its employee Steve Bright (collectively "Wenger") in district court. Wenger moved unsuccessfully for summary judgment upon both the state action and the Noerr-Pennington doctrines and appealed. We dismiss the appeal for lack of appellate jurisdiction. The denial of a summary judgment motion based upon the Noerr-Pennington doctrine is not a collateral order within this court's appellate jurisdiction. The denial of a summary judgment motion premised upon the state action doctrine asserted by a private defendant is not a collateral order within this court's appellate jurisdiction.

I. FACTS and PROCEDURAL HISTORY

Wenger and Acoustic competitively manufacture and sell modular music practice rooms to schools, universities, and other entities. Wenger at one time was the sole manufacturer of modular music practice rooms. Acoustic is a relative newcomer to the market.

Acoustic alleges that Wenger has endeavored to protect its 90 percent share of the modular music practice room market by engaging in anticompetitive conduct. Acoustic alleges that Wenger's near monopoly enables it to persuade architects and builders to use specifications calling for the unique features of Wenger modular practice rooms. Thus, the specification process is an extensive barrier to Acoustic's entry into the market. Acoustic also alleges that Wenger interferes with Acoustic's existing and prospective contractual relations by false disparagement of Acoustic's products and false representations that Acoustic has infringed upon a Wenger patent. Wenger allegedly focuses its anticompetitive conduct upon public and private universities and public school districts, as well as at private architects and general contractors in charge of public school construction projects.

Acoustic filed suit in May 1997 alleging that Wenger had engaged in unfair and anticompetitive business practices against Acoustic including monopolization, predatory pricing and price discrimination, per se tying and restraint of trade, use of fraudulent patent, patent misuse, tortious interference with contract, commercial defamation, and false description and unfair competition.¹

Pursuant to a Wenger motion to dismiss, the district court dismissed two patent related claims (Counts IV and V), and they form no part of this appeal. In August 1998 Wenger moved for summary judgment dismissal of all 16 claims then pending: five relating to antitrust under the Sherman and Clayton Acts, one for false patent marking, one for violation of Texas public procurement laws (Texas Education Code 44.031 et seq.), and nine for business torts.

The district court granted summary judgment in favor of Wenger dismissing the state procurement law claim but denied Wenger's summary judgment motion as to the remaining 15 claims. On January 19, 1999, Wenger timely appealed from the partial denial of summary judgment asserting the collateral order exception to the final judgment rule on grounds that the summary judgment motion was based on the state action and Noerr-Pennington doctrines. Acoustic contends that we lack appellate jurisdiction to consider this appeal because, in the context of this case involving a private defendant, neither the state action doctrine nor the Noerr-Pennington doctrine operates to confer immediate appealability on the interlocutory order issued by the district court.

II. ANALYSIS

Before proceeding further, we must determine whether we have appellate jurisdiction. See Simmons v. Willcox, 911 F.2d 1077, 1080 (5th Cir. 1990) (citing Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987)). As the appellant, Wenger bears the burden of establishing this court's appellate jurisdiction over its appeal. Prewitt v. City of Greenville, 161 F.3d 296, 298 (5th Cir. 1998)(citing Gonzales v. Texas Employment Comm'n, 563 F.2d 776, 777 (5th Cir. 1977)).

Title 28 U.S.C. 1291 provides for appeal from "final decisions of the district courts." Under that provision, an appeal may not be taken "'from any decision which is tentative, informal, or incomplete,' as well as from any 'fully consummated decisions, where they are but steps towards final judgment in which they will merge.'" Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-43 (1993)(quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949)). Because the denial of a summary judgment motion is not a final decision of the district court, the order presently under review by this court is interlocutory. See In re Corrugated Container Antitrust Litigation, 694 F.2d 1041, 1042 (5th Cir. 1983); 10A Charles Alan Wright et al., Federal Practice and Procedure 2715 (3rd ed. 1998). Under the collateral order doctrine, however, an interlocutory district court decision is immediately appealable as a final decision under 1291 if it (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978). If the order at issue fails to satisfy any one of these requirements, it is not an appealable collateral order. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988).

Wenger asserts that an order denying a summary judgment motion premised upon either the state action or the Noerr-Pennington doctrine is immediately appealable under the collateral order doctrine. We conclude, however, that, while both doctrines afford a defense to liability, the state action doctrine does not provide an immunity to suit to a private party, and the Noerr-Pennington doctrine does not provide anyone a right not to stand trial. Consequently, the district court's denial of Wenger's motion for summary judgment is not an appealable collateral order. ²

1. State Action Doctrine

In Martin v. Memorial Hospital at Gulfport, 86 F.3d 1391 (5th Cir. 1996), this court recognized that an appeal by a municipal-state subdivision hospital on the issue of whether it acted pursuant to a clearly articulated and affirmatively expressed policy can be taken immediately under the collateral order doctrine. See 86 F.3d at 1394; see also TEC Cogeneration Inc. v. Florida Power & Light Co., 76 F.3d 1560, 1564 n. ¹ (11th Cir.), modified, 86 F.3d 1028 (11th Cir. 1996)(denial of a motion for summary judgment brought by a public utility under the state action immunity doctrine is immediately appealable under the collateral order doctrine); Askew v. DCH Regional Health Care Authority 995 F.2d 1033, 1036 (11th Cir.), cert. denied, 510 U.S. 1012 (1993) (same result where defendant moving for summary judgment is a public hospital); Commuter Transp. Systems, Inc. v. Hillsborough County Aviation Authority, 801 F.2d 1286, 1289 (11th Cir. 1986)(same result where defendant is public airport authority); but see Huron Valley Hospital, Inc. v. City of Pontiac, 792 F.2d 563, 567-68 (6th Cir.), cert. denied, 479 U.S. 885 (1986) (denial of state action antitrust exemption to state officials is not an appealable collateral order because state action questions did not reflect an entitlement to avoid the burdens of trial, could be preserved for review on appeal from a final judgment, and were bound up with the merits).

In Martin, a nephrologist brought an antitrust action against a public hospital, owned and operated by a municipality and a state subdivision hospital district, and against the hospital's board of trustees to enjoin the enforcement of the hospital's contract with the medical supervisor of its End Stage Renal Disease facility. See 86 F.3d at 1392-93. We concluded that the public hospital's state action immunity claim entailed a right not to bear the burden of the suit such that, regardless of the outcome, denial of the right would be effectively unreviewable after trial. See id. at 1396. We also concluded that the interlocutory order in Martin satisfied the remaining two criteria of the collateral order doctrine: it conclusively determined the disputed question and that question involved a claim of right separable from, and collateral to, rights asserted in the action. See id. at 1396-97. The express holding of Martin limited extension of the collateral order doctrine to the denial of a claim of state action immunity "to the extent that it turns on whether a municipality or subdivision acted pursuant to a clearly articulated and affirmatively expressed state policy." Id. at 1397 (emphasis added).

Wenger argues that a private party seeking immunity from antitrust suit and liability under the state action doctrine should also be permitted to appeal immediately from a denial of summary judgment on these issues within the collateral order exception. Wenger has not cited, and we are not aware of, any decision to this effect.

In determining whether to expand the collateral order exception to include the present case, we are mindful of the Supreme Court's admonition that it is but "a narrow class of collateral orders which do not meet this [traditional] definition of finality, but which are nevertheless immediately appealable under 1291 . . . ." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996). Moreover, the Supreme Court has repeatedly stressed that the "narrow" exception should stay that way and never be allowed to swallow 1291's general rule of finality. See Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)...