Decision Date26 November 1962
Docket NumberCiv. A. No. 2324.
Citation211 F. Supp. 348
CourtU.S. District Court — District of Delaware

Samuel R. Russell (Morford, Young & Conaway), Wilmington, Del., Marvin

Katz, and Harry Norman Ball, Philadelphia, Pa., for plaintiff.

Stephen E. Hamilton, Jr. (Richards, Layton & Finger), Wilmington, Del., and Robert L. Clare, Jr. (Shearman & Sterling), New York City, for defendant.

Plaintiff Deterjet Corporation charges defendant United Aircraft Corporation (Hamilton Standard Division) has violated and continues to violate §§ 1 and 2 of the Sherman Anti-Trust Act.1 Defendant moves for summary judgment.

Plaintiff says he it2 has invented a device for overcoming alleged "inadequacies" in defendant's "customary governor device," used to regulate the operation of aircraft propellers, the so-called inadequacies consisting of the purported failure of these devices to feather3 aircraft propellers during emergencies. Defendant is said to monopolize and control practically all of the market of manufacturing and distributing of the customary governor device and is alleged to have conspired with co-conspirators (though not, here, named as defendants) Pan American World Airways, Inc., Woodward Governor Company, Curtiss Wright Corporation, World Airline Pilots Association, Pratt & Whitney Company, and Douglas Aircraft Corporation for the purpose of preventing plaintiff from marketing or developing its device and thus permitting defendant to maintain and continue its alleged illegal monopoly.4 Among specific acts charged by plaintiff against defendant are threats of unjustified patent litigation; attempts to hinder and delay plaintiff from securing approval of plaintiff's device by the Civil Aeronautics Administration and other agencies of the Federal Government; circulation of false and defamatory rumors and propaganda as to plaintiff's financial status; refusal to sell parts to plaintiff required for the manufacture and development of its device; refusal to test or buy its device; and, refusal to inform plaintiff of confidential information secured from plaintiff as to its device.5 Plaintiff says defendant's acts have resulted, inter alia, in boycott, of its products, exclusion from the manufacturing and distributing market of its device with resultant loss of profits. Plaintiff prays for injunctive and monetary relief.

Defendant's motion for summary judgment claims: 1. It does not enjoy an illegal monopoly; 2. no causal relationship exists between the alleged antitrust violations of defendant and plaintiff's alleged injury; and, 3. plaintiff had no "business" or "property" entitling it to the protective sanctions of the antitrust laws.

LEAHY, Senior District Judge.

1. The standards for disposition of the summary judgment motion have recently been discussed by the Supreme Court6 and this Court.7 A motion for summary judgment, when first introduced as a procedural technique to facilitate a speedy determination of litigation, is now, after pragmatic trial and error experience, growing less in favor. It may be granted where it is certain no relevant unsolved issue of fact requires determination at trial and there remains only a question of law;8 it will not be granted, unless "it is quite clear what the truth is." Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967. Cited in Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed. 2d 458.

Consideration of the present motion begins with the judicial scales weighed against defendant. This case involves a conspiracy charge made pursuant to the anti-trust laws and "conspiracy raises a question of fact or, at least, a question of factual inference. As such, it may not be properly disposed of on summary judgment"9—unless the conspiracy is impossible, as a matter of law, or a plaintiff has by his own words in his complaint or affidavit willed the alleged conspiracy out of existence. Too, "summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot. It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of `even handed justice.'"10

Thus, though the summary judgment mechanism has not been banished to some legal Siberia, nevertheless any anti-trust defendant has a rough road of judicial presumptions to overcome to bring about its acceptance.

2. Defendant United Aircraft says plaintiff's claims are against its natural monopoly and of its "own particular and unique product and not in * * * a generic-type product."11 Defendant concedes it is the only company in the United States which produces a hydromatic propeller system, alleged defects in the governor of which plaintiff claims his device will remedy; but defendant points out this is the same unexceptionable and clear legal monopoly every manufacturer has in its own product. DuPont is cited:

"* * * A retail seller may have in one sense a monopoly on certain trade because of location, as an isolated country store or filling station, or because no one else makes a product of just the quality or attractiveness of his product, as for example in cigarettes. Thus one can theorize that we have a monopolistic competition in every nonstandardized commodity with each manufacturer having power over the price and production of his own product. However, this power that, let us say, automobile or soft-drink manufacturers have over their trademarked products is not the power that makes an illegal monopoly. Illegal power must be appraised in terms of the competitive market for the product."12

Yet, defendant's motion for summary judgment must be denied as a result of the very reasoning of DuPont, supra. Obviously, the nature of the competitive market itself is in dispute here, and the summary judgment mechanism is ill used to make that determination, especially where the parties are still in the midst of pre-trial discovery.13 Defendant argues a manufacturer of propeller systems or their governing devices can hardly be held liable for monopolizing its own product; and plaintiff argues the only manufacturer of hydromatic propeller systems and governors for hydromatic propeller systems may very well monopolize that market. No determination of these vital questions can be made on the fragmentary paper record thus far revealed in this litigation;14 on the contrary, it is neither "quite clear what the truth is," nor what the real market is, I want to hear the witnesses talk.

3. Defendant United Aircraft contends no causal relationship exists between its alleged acts and alleged damages to plaintiff Deterjet. The argument is three-pronged: a) Assuming, arguendo, the existence of monopoly power, it could only have had a "`salutory' effect on plaintiff's prospective business, its business being to manufacture devices to be employed in conjunction with such governors;"15 b) deposition-testimony of plaintiff's officers indicate the direct or proximate cause of plaintiff's alleged damages were failure to receive orders from airlines and delay of the Civil Aeronautics Administration in granting certification for plaintiff's device—neither of which can be attributed to any illegal act of defendant; and, c) other charges against defendant are irrelevant to alleged damages suffered.

The private litigant in an antitrust civil suit has a different and more stringent burden than does the Attorney General. "No private litigant has the right to take upon himself the role of the Attorney General in the enforcement of the antitrust laws. If such was fact, the legal life of the judiciary would be intolerable. It is the Attorney General who applies for enforcement of the antitrust laws in the public interest. When the private litigant sues, he must establish his right to redress for the particular wrong done to him." Zenith Radio Corp. v. Radio Corp. of America, D.C. Del., 106 F.Supp. 561, 576.

Here, plaintiff claims the intent and effect of the monopoly alleged was to exclude him from the market place. Manifestly, whatever the cause, plaintiff is now out of any market place.16 And thus it can hardly be successfully maintained by defendant, on this motion, that the monopoly, if it did exist, was either benevolent or beneficial. It is no comfort to an anti-trust plaintiff (and no defense for an anti-trust defendant) that the monopolist who has driven him from the market place was the party for whom plaintiff's product was produced. If plaintiff's contentions are correct, this is precisely what has happened here. In any event, the facts that brought about the demise of plaintiff's business cannot be determined by this limited and wholly paper record.

Deposition-testimony of Deterjet's Grindle states CAA failure to approve Deterjet's device "killed" the business.17 Defendant thereupon argues Deterjet concedes its case because the recent Supreme Court holding in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 held damages brought about by governmental action, whether or not that action was solicited by an antitrust defendant, is not recompensable.

The question is a close one, but I am unwilling to take one paragraph from plaintiff's lengthy deposition in which— as attorneys or private citizens are sometimes wont to do—Grindle may have verbally overstated himself, and halt these proceedings. Deposition-testimony of persons unskilled in legal arts cannot be judged as strictly as pleadings prepared by an attorney or testimony viewed by a judge.18 At other points in Grindle's deposition,...

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