Ando v. Great Western Sugar Company

• Decision Date: 20 March 1973
• Docket Number: No. 72-1224.,72-1224.
• Citation: 475 F.2d 531
• Parties: Jack ANDO, Plaintiff-Appellant, v. The GREAT WESTERN SUGAR COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

475 F.2d 531 (1973)

Jack ANDO, Plaintiff-Appellant, v. The GREAT WESTERN SUGAR COMPANY, Defendant-Appellee.

No. 72-1224.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted September 21, 1972.

Decided March 20, 1973.

J. D. Fitzstephens, Cody, Wyo., for plaintiff-appellant.

Jay H. Topkis, New York City (Paul B. Godfrey, Cheyenne, Wyo., Paul, Weiss, Rifkind, Wharton & Garrison, Baer & McGoldrick, Max Gitter and Thomas Baer, New York City, of counsel, on the brief), for defendant-appellee.

Before LEWIS, Chief Judge, and JONES^* and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Jack Ando, a citizen of the State of Wyoming, brought an action in the United States District Court for the District of Wyoming against the Great Western Sugar Company, a Delaware corporation with its principal place of business in the State of Colorado. The complaint presented three separate claims for relief. The first two were based on diversity jurisdiction and alleged libel and slander, and the third claim was for an alleged violation of federal antitrust laws.

Both parties to the controversy engaged in extensive pre-trial discovery. Based, then, on various answers to interrogatories, admissions and depositional proof, including the depositions of Jack Ando himself, Great Western moved for summary judgment under Fed.R.Civ.P. 56. After extended argument and briefing of the matter, the trial court granted the motion and entered judgment for Great Western. Ando now appeals.

We affirm on the ground that based on the record before it, the trial court was justified in concluding that there was no genuine issue of a material fact and that summary judgment was proper. Background information which is not really in dispute must be fully developed in order to demonstrate the propriety of the trial court's action.

Ando is a grower of sugar beets and in the past, at least, has sold his beets, under contract, to Great Western, the latter being a processor of sugar beets and in connection therewith maintaining several processing plants in the Rocky Mountain West. In 1968, Ando, in addition to his farming activities, entered into a contract with Zwaanesse Ltd., a Dutch concern, to become its franchised dealer to sell in the western part of the United States its sugar beet seed, known as "Zwaanpoly."

Ando had earlier contacted Great Western and inquired as to whether Great Western would be interested in assisting him in marketing the Zwaanpoly beet seed. Great Western declined, but informed Ando that he was free to attempt to sell the Dutch seed to growers under contract to Great Western. In this regard it should be mentioned that Great Western had its own sugar beet seed which it sold to its growers, and others, but it nonetheless gave permission to Ando to sell his Dutch seed to Great Western growers. And this Ando did during the 1968 season.

During the latter part of 1968 a dispute, or at least a difference of opinion, arose between Ando and Great Western, and others, concerning the general adaptability of Zwaanpoly seed to the Rocky Mountain West, the discussion centering on the disease resistance qualities of Zwaanpoly, as well as its relative sugar content and processed juice purity as opposed to beets grown from other seeds, including Great Western's own commercial beet seed strains.

After considerable discussion, it was agreed that for the 1969 season, at least, Great Western would continue to buy beets grown from Zwaanpoly seed, and that for that year, at least, Ando could continue to sell his seeds to Great Western growers who chose to buy it. The question as to whether Zwaanpoly would be used in 1970, and thereafter, was thereupon referred to a so-called "Joint Research Committee," which was charged with the responsibility of conducting tests of Zwaanpoly seed, as compared with other beet seed, for disease resistance, sugar content, purity, and other significant characteristics. The Joint Research Committee was composed of thirteen elected representatives of the growers and three representatives of Great Western.

Beginning in the spring of 1969, the Joint Research Committee, hereinafter referred to as JRC, caused to be conducted extensive testing of the Zwaanpoly seed, as well as other sugar beet seeds, such tests being conducted at different locations by various branches of the United States Department of Agriculture, by a number of universities, as well as through the facilities of Great Western. Additionally, Ando made available to JRC his views on the matter, both orally and in writing, as did Dr. Zwaan himself, Dr. Zwaan being the developer of the Dutch seed, who visited the United States in the fall of 1969. Similarly, Great Western, mainly through one of its employees, a Dr. Oldemeyer, who was himself a member of the JRC, made its views and test results available to JRC.

On December 17, 1969, the JRC met to analyze the results of the various tests and after deliberation voted unanimously that Zwaanpoly seed would not be used in the 1970 season by any grower under contract to Great Western and that in 1970 and all succeeding years no grower would use any seed except seed approved by it.

About a week after this action by JRC, Great Western and the elected officials of the beet growers association caused several press releases to be issued, setting forth the action taken by JRC, and it is these press releases which form the basis for Ando's libel claim against Great Western. Specifically, Ando complains about the press releases which, in addition to announcing the action taken by JRC, contained the following statements: (1) Beets grown from Zwaanpoly seed are consistently lower in sugar content and purity than beets grown from Great Western's seed; (2) Zwaanpoly beets are especially susceptible to the diseases of leaf spot, curly top, nematodes and Rhizoctonia; (3) Zwaanpoly beets are more susceptible to freezing; and (4) that "extensive scientific investigations proved conclusively" that the "best interests" of a vast majority of beet growers in Great Western districts would be served by not using Zwaanpoly seed.

As indicated, the press releases form the basis for Ando's first claim. Ando's second claim is grounded on the statements made by Dr. Oldemeyer to the JRC, said statements being along the same general lines as the various written statements appearing in the subsequent press releases.

The third claim was an alleged antitrust violation grounded on what was said to be Great Western's efforts to create a monopoly in the sale of its sugar beet seed in this geographical area. The propriety of the trial court's action in entering summary judgment on the third claim is not challenged in this court. Rather, counsel confines his argument here to the propriety of the trial court's action in entering summary judgment on the libel and slander claims. We will accordingly confine our comment to the libel and slander aspects of the case, which is the heart of the controversy.

Initially we note that it is agreed that it is the substantive law of Wyoming which must be applied with respect to the merits of the libel and slander claims presented here in this diversity action.¹ It is further agreed, however, that it is not Wyoming law which controls the handling of the motion for summary judgment,² such being a matter of federal procedural law.³ In this context, then, the trial court granted Great Western's motion for summary judgment and in so doing determined that on the basis of the record then before it the allegedly defamatory statements made by Great Western, both written and oral, were in fact true statements and that accordingly there remained no genuine issue as to any material fact. The trial court proceeded on the premise that the truth of a defamatory statement is a "complete" defense to an action for libel, citing in support of this proposition Article I, § 20 of the Wyoming Constitution, about which more will be said, and the Restatement of Torts, § 582 (1938).

Fed.R.Civ.P. 56(c) provides in pertinent part that a motion for summary judgment should be granted "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In applying this rule, it has been declared that a trial court is under a duty to grant a motion for summary judgment in an appropriate case, bearing in mind that the relief contemplated is drastic and the rule should be applied with caution to the end that litigants will have a trial on bona fide...