Daiflon, Inc. v. Bohanon
| Decision Date | 21 December 1979 |
| Docket Number | No. 79-1459,79-1459 |
| Citation | 612 F.2d 1249 |
| Parties | 1980-1 Trade Cases 63,116 DAIFLON, INC., Petitioner, v. The Honorable Luther BOHANON, Judge of the United States District Court for theWestern District of Oklahoma, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
B. Hayden Crawford, Tulsa, Okl. (Joel L. Wohlgemuth of Prichard, Norman & Wohlgemuth, Tulsa, Okl., and Frank Gregory, Tulsa, Okl., on the brief), for petitioner.
John S. Athens and Douglas L. Inhofe of Conner, Winters, Ballaine, Barry & McGowen, Tulsa, Okl., for defendant Allied Chemical Corp.
Herbert Dym of Covington & Burling, Washington, D.C. (Coleman Hayes of Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, Okl., and John P. Rupp of Covington & Burling, Washington, D.C., on the brief), for defendant E. I. du Pont de Nemours and Co.
James M. Sturdivant and Sidney G. Dunagan of Gable, Gotwals, Rubin, Fox, Johnson & Baker, Tulsa, Okl., for defendants Kaiser Aluminum & Chemical Sales, Inc., and Kaiser Aluminum & Chemical Corp.
Peter B. Bradford of McAfee, Taft, Mark, Bond, Rucks & Woodruff, Oklahoma City, Okl., and Henry Kolowrat of Dechert, Price & Rhoads, Philadelphia, Pa., for defendant Pennwalt Corp.
J. L. Weigand, Jr. of Curfman, Harris & Weigand, Wichita, Kan., for defendant Racon Inc.
D. Kent Meyers of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., for defendant Union Carbide Corp.
Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.
These are proceedings in which Daiflon seeks review of an order of the district court granting a new trial in an antitrust case which had been tried to a jury. Daiflon prevailed in that case and recovered a judgment in the amount of.$2.5 million actual damages. Daiflon moved the court to treble this amount. The court simply ordered entry of judgment for.$2.5 million. The trial court granted a new trial on all of the issues. See Exhibit A. Daiflon seeks to prohibit further proceedings except as the same are necessary in order to enter judgment on the verdict including treble damages, and to determine and assess the costs against the defendants, including attorneys' fees.
The remedy here sought is pursuant to extraordinary writ, 28 U.S.C. § 1651(a) and Fed.R.App.P. 21. Daiflon contends that the trial court's new trial order exemplified an erroneous practice likely to recur. It calls attention to the fact that the trial judge, the Honorable Luther Bohanon, had previously dismissed this case for a trivial reason which necessitated a reversal by this court. In that instance the judge entered an order of dismissal with prejudice for failure of Daiflon to answer one discovery question. This order was vacated and the cause was reinstated by this court. See Daiflon v. Allied Chemical Corp., 534 F.2d 221 (10th Cir.), Cert. denied 429 U.S. 886, 97 S.Ct. 239, 50 L.Ed.2d 168 (1976). In essence, the petitioner contends that the trial judge has a misconception of the scope and extent of trial court's authority to grant a new trial. Daiflon's position appears to be that the judge acted on the premise that the trial court's discretion is virtually unlimited, and that because of this there exists a likelihood that there will be a repetition of the present result.
To obtain relief Daiflon must, of course, demonstrate that its right is clear and indisputable. See Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978); State Farm Mutual Automobile Ins. Co. v. Scholes, 601 F.2d 1151, 1154 (10th Cir. 1979). Daiflon is required to show that the order was not only erroneous under normal standards of appellate review, but also that the ruling is so extraordinary as to evidence arbitrariness and a clear abuse of discretion.
The record here is a special one which was prepared by counsel on order of this court once it had been decided that the case should be reviewed at least to some extent. There was no transcript filed so the parties were ordered to prepare simultaneous summaries of the evidence which had been presented by each side at the trial. This was to have been in lieu of a transcript. 1 Petitioner followed the directions of the court fully. It presented a 160-page document which was fully referenced, and which complied in every detail with the court's order. It was not required to summarize the defendants' testimony at the trial and so it did not do so, with the possible exception of presenting evidence in some instances that had been brought out by Daiflon on cross-examination of defendants' witnesses. The petitioner had a right to assume that the defendants would present in summarized form the testimony of their own witnesses. The defendants' statement was relatively brief and had an argumentative tone and sought to answer petitioner's reply brief. Essentially, it was a brief and argument. Only the testimony of one witness The facts can be stated briefly. From 1969 to 1972, Daiflon had engaged in the business of importing refrigerant gas from Japan. The gas was repackaged by Daiflon and resold to both wholesalers and retail contractors and servicemen in the non-automotive air conditioning industry. This suit was commenced on July 12, 1972, seven years prior to the instant proceedings. The suit was brought under the Sherman Act, §§ 1 and 2, in the United States District Court for the Western District of Oklahoma. The defendants named were E. I. du Pont de Nemours & Co., Allied Chemical Corp., Kaiser Aluminum & Chemical Corp., Pennwalt Corp., Racon, Inc., and Union Carbide Corp., all of which manufactured refrigerant gas. In the suit it was alleged that the defendants had engaged in an unlawful price-fixing conspiracy, the object of which was to exclude Daiflon from the market. A further allegation was that defendants conspired to monopolize the market and that du Pont had engaged in monopolization through predatory pricing and disparagement of Daiflon's products. There was testimony presented at the trial that each of the defendants reduced their selling prices for refrigerant gas in March 1971 by 13%, and that the defendants had further reduced the selling prices of two grades of refrigerant gas in March 1972. Daiflon ceased doing business in October 1972. After the cessation of its business, defendants increased their prices to the pre-March 1971 level.
was summarized, and that was not fully presented. 2
There was testimony that du Pont had approximately 45% Of the market; Allied Chemical had approximately 18-20%; Union Carbide, 12-14%; Pennwalt, 8-9%; Kaiser, 7-8%; and Racon, 2%. Daiflon sold its refrigerant gas in 31 states, although its share of the market was estimated to be .5% Prior to the price lowering of the defendants. There does not appear to be any quality difference in this product.
Daiflon's sales were shown to have increased after it was formed in 1969 until June 1971, at which time the price decrease of the defendants was felt and the sales of Daiflon reduced from $160,000 to $10,000 in one month. Following this, Daiflon was ordered by its bank to liquidate.
In August 1971, the President imposed a ten percent surcharge on all imported goods and thereby increased the duty on refrigerant gas from six to sixteen percent. This continued in effect until December 1971, at which time the dollar was devalued against the yen. Daiflon did not import refrigerant gas from Japan after August 1971, but sold it out of its inventory. The defendants maintained that Daiflon's failure was due to the imposition of the import surcharge and to problems in Daiflon's operations, and was not due to the defendants' actions. This was undoubtedly one of the primary fact issues submitted to the jury.
After trial, the trial court denied the defendants' motion for judgment notwithstanding the verdict. The judge did not formally vacate the judgment entered in favor of Daiflon on April 9 in conjunction with the grant of the new trial. No doubt this was oversight. The defendants have nevertheless filed a notice of appeal from the judgment and also from the denial of their motion for judgment notwithstanding the verdict.
It would appear from reading the transcribed oral ruling of the judge that the trial court's dissatisfaction was on the basis that the Damages were excessive and was on the further ground that he had erred in the admission of unidentified exhibits.
The trial court's main disagreement was with the amount of the verdict. The judge stated in connection with the new trial order that the amount of the award shocked him, and the indications were that he would have been even more shocked had he ordered the trebling of the damages. The judge had much less to say about the jury's conclusion that the defendants were liable
under the antitrust laws. The main complaint here was that there was not enough time and effort given to determining the authenticity of the documents that were received in evidence, and he expressed a determination to consider them with much greater care on retrial. At the same time he did not point out any single document or group of documents which should not have been received.
The primary question in the case is whether, in view of the fact that final judgment or final order is not from a practical standpoint present in the record, and hence there is not an adequate remedy at law, an extraordinary writ can be employed to review the validity of the order of the trial court granting a new trial.
In our opinion the trial court merely overlooked formal vacating of the judgment, and therefore we must assume that this intended object was carried out since the new trial was ordered.
The defendants take the position that there is No remedy under an extraordinary writ. The only possibilities, according to them, are, first, to grant their motion for judgment notwithstanding the verdict, or, second, to retry the...
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