Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 78-3684

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WALLACE and ALARCON; ALARCON
Citation674 F.2d 1252
PartiesCLIPPER EXXPRESS, a corporation, Plaintiff-Appellant, v. ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC., Yellow Freight Systems, Inc., Consolidated Freightways Corporation of Delaware, Illinois-California Express Inc., IML Freight Inc., Pacific Intermountain Express Co., T.I.M.E.--D.C. Inc., Consolidated Copperstate Lines, Garrett Freight Lines, Inc., Navajo Freight Lines, Inc., N.W. Transport Service, Inc., Ringsby Truck Lines, Inc., Rio Grande Motor Way, Salt Creek Freight Ways, Transcon Lines, United Buckingham Freight Lines and Western Gillette, Inc., Defendants-Appellees.
Docket NumberNo. 78-3684,78-3684
Decision Date29 July 1982

Appeal from the United States District Court for the Northern District of California.

Eugene C. Crew, Joel Linzner, San Francisco, Cal., argued, for plaintiff-appellant; Mark J. Le Hocky, Broad, Khourie & Schulz, San Francisco, Cal., on brief.

J. Thomas Rosch, San Francisco, Cal., argued, for defendants-appellees; Ann Fingarette Hasse, McCutchen, Doyle Brown & Enersen, San Francisco, Cal., on brief.

Robert S. Griswold, Jr., Gary Roberts, San Francisco, Cal., on brief, for I.C.C. amicus curiae.

Before WALLACE and ALARCON, Circuit Judges and von der HEYDT, * District Judge.

ALARCON, Circuit Judge:

Plaintiff Clipper Exxpress (Clipper) appeals from the entry of an order granting summary judgment for the defendant trucking companies and Rocky Mountain Motor Tariff Bureau (RMMTB) [hereinafter jointly referred to as defendants]. Clipper sued defendants for various antitrust violations arising from protests filed with the Interstate Commerce Commission (ICC) by defendants with regard to certain shipping rates published 1 by Clipper. The district court granted summary judgment for defendants based on (1) the Noerr-Pennington 2 exception to the antitrust laws, which the district court held cloaked the defendants' actions with immunity, and (2) the Keogh 3 doctrine, which the district court held barred the recovery of damages in this antitrust action. We reverse and remand for a trial on the merits because neither the Noerr-Pennington exception nor the Keogh doctrine provide defenses as a matter of law under these facts.


Clipper is an ICC-regulated freight forwarder, subject to regulation under the Interstate Commerce Act (ICA). As a freight forwarder, Clipper itself ships no goods, but rather assembles and consolidates small shipments into single lots for shipment by carrier companies.

Defendants are ICC-regulated trucking companies and the RMMTB. RMMTB is a rate bureau formed under the ICA. A rate bureau is an organization formed by an agreement among common carriers. Through the bureau the carriers act collectively to initiate, consider and establish rates and fares for members of the bureau. When acting in conformity with an ICC-approved agreement, joint rate setting action is not subject to the antitrust laws. 49 U.S.C. Sec. 10706. RMMTB's membership consists of approximately 1,400 motor carriers, and represents approximately 80 percent of the transcontinental surface transportation market.

ICC rate regulation of freight forwarders such as Clipper is provided in 49 U.S.C. Sec. 1005, recodified as 49 U.S.C. Secs. 10725, 10762. Under Sec. 1005, a freight forwarder seeking a rate change publishes a new rate. In the absence of a protest, the rate will take effect automatically thirty days later. If there is a protest, the ICC can suspend effectiveness of the rate while investigating the protest. The ICC also retains power to suspend any new rate sua sponte, but this power is rarely exercised.

In the late 1960's, freight forwarding was a failing industry. The freight forwarding industry suffered heavy traffic losses because of the competition presented from 'shipper associations' and 'shipper agents' whose rates were unregulated. An ICC investigation revealed that the freight forwarder's economic predicament was due to the lower rates of these unregulated associations. The ICC recommended that the freight forwarders lower their rates to compete effectively with the lower rates of unregulated associations.

In November 1970, Clipper, in order to compete with the rates of the unregulated associations, published Tariff 55, a lowered rate of $1056 per 30,000 pound shipment. Clipper hoped to eventually lower its rate to $842 per 30,000 pounds. Clipper fully expected defendants to protest to the ICC any lowered rate it published. 4 Clipper hoped that by publishing the intermediate $1,056 rate instead of the lower $842 rate, the ICC would not act on defendants' anticipated protest by investigating and suspending implementation of Clipper's new rate. Clipper intended to lower its rate to 842 if the ICC did not investigate and suspend the intermediate rate.

As expected, a few days after the $1,056 Tariff 55 was published, RMMTB filed a protest to Tariff 55 with the ICC. The ICC did not suspend the $1,056 rate, but did investigate the rate over the next two years. During the course of the ICC investigation, Clipper filed several amendments to Tariff 55--which both extended the geographical coverage of the rate and progressively lowered the rate. RMMTB protested each amendment. The ICC found for Clipper throughout its investigation. The defendants exhausted all the ICC procedures in order to prevent implementation of Tariff 55, and received no relief. At the conclusion of this administrative process, Clipper lowered Tariff 55 to the $842 level; defendants' protest to this rate was also unsuccessful.


In 1972 Clipper filed a complaint in district court against RMMTB and various trucking companies, alleging antitrust violations. In addition, to avoid the general principle that genuine efforts to induce legislative or administrative action, even if undertaken for the purpose of stifling competition, are outside the scope of the antitrust laws, Clipper relied on three theories in its pleadings. First, Clipper contended that defendants' protests of Tariff 55 were sham protests filed 'for the purpose of directly restricting, lessening, and prohibiting the legitimate competition' of freight forwarders. Second, Clipper contended 5 that defendants attempted to influence ICC action by supplying fraudulent information to the ICC. Clipper relied on the Walker Process 6 doctrine, which extends antitrust liability to one who commits fraud on a court or agency to obtain competitive advantage. Finally, Clipper contended that the protests were simply part of a larger independent antitrust violation. 7

Clipper claimed it sustained thirty million dollars of damages because of the actions of defendants and sought treble that amount. These damages allegedly represented (1) the loss incurred by Clipper in having to delay over two years before instituting its final $842 rate; (2) the costs in having to respond to the protests; and (3) business loss because of the instability and uncertainty surrounding Clipper's rates, due to the ICC investigation. Clipper claims that shippers will not use a rate if it is under ICC investigation.

Proceedings were stayed by the district court judge to permit the ICC to rule on defendants' protests. After the ICC overruled all the protests, court proceedings were revived.

After denying two previous motions by the defendants for a summary judgment, defendants' third summary judgment motion was granted on July 27, 1978, and entered on July 31, 1978. The district court held that the protests to the ICC were immune as a matter of law, relying on Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Board of Culinary Workers, 542 F.2d 1076 (9th Cir. 1976), cert. denied, 430 U.S. 940, 97 S.Ct. 1571, 51 L.Ed.2d 787 (1977). Moreover, the district court held that Clipper was attempting to collect damages which rest on assumptions as to ICC actions, and held this was prohibited as a matter of law by Keogh v. Chicago & N. W. Railroad Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922).


The defendant-appellees contend that this court is without jurisdiction over this appeal because Clipper did not file its Notice of Appeal within the requirements of Rule 4(a) of the Federal Rules of Appellate Procedure.

Timely filing of a Notice of Appeal is a prerequisite to this court's appellate jurisdiction. See Browder v. Director, Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). We find that this Notice of Appeal was timely filed and we therefore hold that this court has jurisdiction over this appeal. 8

Rule 4(a) of the Federal Rules of Appellate Procedure provides that a Notice of Appeal is to be filed within thirty days of entry of judgment. The thirty-day period, however, is tolled by the timely service of a Rule 59(e) motion to reconsider and vacate the judgment. If a 59(e) motion is timely served, the time for filing a Notice of Appeal is tolled and does not begin running until the district court disposes of the 59(e) motion. See Fed.R.App.P. 4(a)(4). 9

Summary judgment for defendants was entered on July 31, 1978. Ten days later, on August 10, 1978, Clipper served a notice of motion and a motion to reconsider and vacate the order pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, supported by a memorandum of points and authorities. Clipper filed this motion in the district court on August 14, 1978. The motion was argued on September 11, 1978 and denied on October 13, 1978. Twenty-four days after the denial, on November 6, 1978, Clipper filed its Notice of Appeal.

Defendants contend that Clipper's 59(e) motion was not sufficient to toll the time for appeal on two grounds. First, defendants contend that the material served by Clipper on August 10 was incomplete, and therefore could not toll the time for filing a Notice of Appeal. Specifically defendants...

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