Becker v. Safelite Glass Corporation
| Decision Date | 18 August 1965 |
| Docket Number | Civ. A. No. W-2951. |
| Parties | Fred J. BECKER, d/b/a Becker's Auto Glass, Plaintiff, v. SAFELITE GLASS CORPORATION, Inc., a corporation, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
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Vincent L. Bogart, and Harold Irwin, Wichita, Kan., for plaintiff.
Levand & Weil and Jochems, Sargent & Blaes, Wichita, Kan., for defendants.
This civil antitrust suit is currently before the court on defendants' motion for summary judgment; defendants' motion to dismiss pursuant to Fed.R.Civ.P. 41(b); defendants' motion for judgment for costs; and defendant Safelite's motion to dismiss under Federal Rule 37. For convenience, the defendants will be referred to herein as follows:
Individual defendants: by name Safelite Glass Corp.: "Safelite" Service Auto Glass Co.: "Service" or "Service Auto" The Auto Glass Co.: "Auto Glass"
To place these motions in proper perspective, a brief history of this piece of litigation is required. The suit was filed on August 8, 1963. On August 28, 1963, Safelite Glass Distributors, Inc., a named defendant, moved for summary judgment as to it. See DOC #8. The motion was continued on September 28, 1963 DOC #17 and was sustained on September 3, 1964 DOC ##51, 52. Defendants Service Auto and Auto Glass moved to dismiss on August 28, 1963 for lack of jurisdiction; improper venue; failure to join indispensable parties; and failure to state a claim on which relief could be granted. DOC #9; this motion was denied without prejudice to later filing on January 29, 1964 DOC #32. Also on August 28, 1963, defendants moved for security for costs. DOC #10.
On August 30, 1963, defendants were granted ten additional days in which to plead DOC #11; and on September 16, 1963 defendants moved for additional time in which to plead DOC #15. On September 28, 1963, the court extended the time in which to answer until fifteen days after the taking of a named individual's deposition. DOC #18. Plaintiff filed an amended complaint on October 29, 1963 DOC #23, and the parties stipulated that defendants would have until fifteen days after the taking of the named individual's deposition in which to answer the amended complaint DOC #28.
Defendants Lankin and Weil DOC #35; Service Auto and Auto Glass DOC #36; and Safelite DOC #37 answered on March 18, 1964, and on April 10, 1964 the court ordered the case continued off the pretrial calendar. DOC #45. Plaintiff filed its first set of interrogatories on September 2, 1964 DOC #50; on September 14, 1964 the defendants were given until September 24 to answer the interrogatories DOC #54 and the interrogatories were answered on that date DOC #59.
The court entered an "Order Relating to Discovery Procedures" on September 3, 1964 (roughly six months after the case was at issue), in which the court ordered:
(a) all discovery was to be completed within ninety days;
(b) examination of books and records was to be completed within thirty days, and after that thirty day period the books and records of the parties were not to be available for that purpose;
(c) interrogatories could be answered by specific reference to appropriate books;
(d) if interrogatories were answered by reference to compiled lists and the like, such lists were to be made available;
(e) any books and records referred to in an answer to interrogatories were to be made available;
(f) "A pretrial order shall be filed in 90 days." (emphasis added) DOC #51, 53.
On September 24, 1964 defendant Safelite filed its first set of Interrogatories on plaintiff DOC #54, and Safelite filed its second set of Interrogatories on plaintiff on January 8, 1965 DOC #74. On December 14, 1964, plaintiff requested six months additional time in which to complete discovery, and also moved to bring in numerous additional parties defendant DOC #70. At that time, defendants orally moved for judgment under Fed.R.Civ.P. 37 on the basis of plaintiff's failure to answer interrogatories within the period prescribed by the Rules. The court overruled such motion pending a sixty day extension. Tr. December 14, 1964 Hearing, p. 24, DOC #99.
The court extended the September 1964 extension order for sixty days and informed plaintiff and his counsel: Tr. December 14, 1964 Hearing, p. 23 DOC #99. The court further stated:
"As I explained to you before, out of an abundance of precaution to see that this plaintiff has his day in Court I am extending this matter for 60 days under the order that I made and I want you to prepare an order, and I want you to approve it, and I want it in here in this file, and I don't want to hear from any of you again about an extension of time in this case." Tr. December 14, 1964 Hearing, pp. 29-30, DOC #99.
The December 14, 1964 proceedings were journalized on January 12, 1965 DOC #78. The order recited, inter alia, that plaintiff's motion to add additional parties defendant was overruled; that the period for the completion of all discovery was extended for sixty days; and that plaintiff was given time during the sixty day extension to answer the first set of interrogatories which had been filed on plaintiff September 24, 1964. The order concluded:
On January 27, 1965 DOC #81, plaintiff filed its answers to defendant Safelite's second set of interrogatories in a form violative of Local Rule 14(d); and on February 2, 1965, defendant Safelite moved to compel answers or in the alternative for requested admissions DOC #83. Plaintiff objected to defendant's motion to compel answers on February 8, 1965 DOC #88. On February 8, 1965, plaintiff partially answered defendant Safelite's first set of interrogatories in proper form DOC #87.
Also on February 8, 1965, defendant Safelite moved to dismiss pursuant to Fed.R.Civ.P. 37 DOC #89; this motion is currently pending. On February 10, 1965, plaintiff moved for still another extension of time for discovery and for the submission of a pretrial order DOC #91, and moved to compel answers on February 23, 1965 DOC #94. All defendants moved to dismiss pursuant to Fed.R.Civ.P. 41(b) and for judgment for costs on February 26, 1965 DOC #97; this motion is currently pending.
On March 18, 1965 DOC #102, the court ordered that further extensions for discovery would not be granted; and in order to ascertain whether plaintiff had any claims on which relief could be granted, the court set the case down for a "trial" to the court on 14, 15 and 16 April, 1965, at which time plaintiff was to submit all the evidence it had to sustain its various claims. Plaintiff was granted ten days in which to submit a proposed pretrial order, and counsel were to report to the court re any pre "trial" problems on April 5, 1965. DOC #102.
On April 5, 1965 it appeared that plaintiff's attempts at a proposed pretrial order were totally unacceptable to defendants, and the court ruled that April 14, 1965 would be devoted to preparing a pretrial order narrowing the issues. DOC #104.
Plaintiff then proceeded to serve subpoenas duces tecum on numerous individuals and firms to appear April 15, 1965 and to produce voluminous records. DOC ##105, 111; several motions to quash were filed in response. DOC ##106, 107, 108, 109. These motions to quash were sustained. DOC ##110, 113, 114, 115.
During April 14 and 15 and part of April 16, 1965, the court worked with counsel in an attempt to arrive at some sort of pretrial order. The motions to compel answers of both parties were disposed of as reflected by the court reporter's notes of the sessions. On April 16, 1965, defendants renewed their Rule 41 motion to dismiss and further moved for summary judgment, and the summary judgment motion was argued based on an outline of plaintiff's statutory claims for relief. Plaintiff was to furnish the court with a summarization of witnesses' testimony to be used in conjunction with the motion. Such was marked as Summary Judgment Exhibit 2; and agreed statement of facts was submitted as Summary Judgment Exhibit 1. In addition, plaintiff was to furnish the court with organized citations to depositions, exhibits, and interrogatories on file in this case which plaintiff felt sustained its various claims. The following exhibits were marked or were to be marked: Plaintiff Exhibits 1-21: from the Price deposition; Plaintiff Exhibits 22-49: from the Pyle deposition; Plaintiff Exhibits 50-52: from the Cleeton deposition; Plaintiff Exhibits 53-67: brought to the sessions; Summary Judgment Exhibits 1 and 2.
On April 26, 1965, plaintiff submitted a twelve page "summary" of citations to depositions and interrogatories which he contends sustain his various positions. DOC #117. Attached to this letter of citations were interrogatories and answers thereto in prior antitrust suits in this court and also a brief filed in the prior suits by an attorney who is representing defendants at bar. These additional items were not marked as exhibits at the pretrial sessions April 14 and 15, 1965.
Defendants' summary judgment motion will be considered in the same manner in which it was argued to the court —i. e., the motion will be considered separately as to each of plaintiff's several asserted claims for relief. It should be stated initially that at the April 14, 1965 session, plaintiff admitted his claim under 15 U.S.C.A. § 13a was not good and such claim was dropped from the lawsuit.
Rule 56 applies to all parties and civil actions that are subject to the Federal Rules; and the presence of difficult legal questions in...
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