Fusco v. Xerox Corp.

Decision Date28 April 1982
Docket NumberNo. 81-2123,81-2123
Citation676 F.2d 332
Parties1982-1 Trade Cases 64,704 Charlotte FUSCO and Daniel Boe, Appellants, v. XEROX CORPORATION, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Betsy G. Berger, Lincoln, Neb., for appellants.

Gerald P. Laughlin, Craig W. Thompson, Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, Neb., for appellee.

Before ROSS, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HENLEY, Circuit Judge.

ROSS, Circuit Judge.

On May 28, 1981, appellants, Charlotte Fusco and Daniel Boe, filed an amended complaint, 1 pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15 (1976), against the Xerox Corporation (Xerox) alleging unlawful price discrimination under Section 2(a) of the Robinson-Patman Price Discrimination Act, 15 U.S.C. § 13(a) (1976). On June 2, 1981, Xerox filed a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The district court 2 granted the motion to dismiss on September 30, 1981. For the reasons set forth below, we reverse and remand to the district court for further proceedings.

This complaint arose out of appellants' purchase of three used Xerox 800-type word processing machines on May 9, 1980, for $14,416.27. The equipment had been previously owned by another individual, Gloria Melbye, who had purchased the word processors from Xerox under an installment sales contract. According to the appellants, prior to purchasing the equipment, they had priced similar equipment for sale by Xerox and had been advised by Xerox that new 800-type word processors would cost $5,500 per unit and that a new 850-type word processor (a more advanced machine) would cost $12,000 per unit. Gloria Melbye assigned her installment contract to the appellants, and Xerox released Melbye from any further obligations under the contract. After this agreement was executed, appellants allegedly learned that Xerox was selling the same 800-type model in new condition to favored customers for only $2,500 and was selling the more advanced 850-type model to favored customers for $7,000.

The key question upon which this case turned in the district court, as well as the question facing this court on appeal, is whether or not under the facts alleged in this case appellants were "purchasers" within the meaning of the Robinson-Patman Price Discrimination Act. The district court concluded that the plaintiffs could not prove under any set of facts that they were "purchasers" for purposes of the Act and that the agreement itself, repeatedly couched in terms of an assignment, contradicts the appellants' allegation that a new sale occurred between Xerox and the appellants.

In reviewing the district court's conclusion it must be remembered that the court is constrained by a stringent standard in passing on a Rule 12(b)(6) motion to dismiss. "(A) complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (footnote omitted). A complaint must be viewed in the light most favorable to the plaintiff and should not be dismissed merely because the court doubts that a plaintiff will be able to prove all of the necessary factual allegations. "Thus, as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief (citations omitted)." Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir. 1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979).

The Robinson-Patman Act provides in relevant part:

It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.

15 U.S.C. § 13(a) (emphasis added).

There is nothing technical or talismanic about the term "purchaser." "The term purchaser means simply one who purchases, a buyer, a vendee. It does not mean one who seeks to purchase, a person who goes into the market-place for the purpose of purchasing." Shaw's, Inc. v. Wilson-Jones Co., 105 F.2d 331, 333 (3d Cir. 1939). "Moreover, no single sale can violate the Robinson-Patman Act. At least two transactions must take place in order to constitute a discrimination." Bruce's Juices, Inc. v. American Can Co., 330 U.S. 743, 755, 67 S.Ct. 1015, 1020, 91 L.Ed. 1219 (1947). " '(T)here must be actual sales at two different prices to two different actual buyers.' " M. C. Manufacturing Co. v. Texas Foundries, Inc., 517 F.2d 1059, 1065 (5th Cir. 1975), quoting Jones v. Metzger Dairies, Inc., 334 F.2d 919, 924 (5th Cir. 1964), cert. denied, 379 U.S. 965, 85 S.Ct. 659, 13 L.Ed.2d 559 (1965). Thus, a sale at one price plus either an offer to sell at a higher price or a refusal to sell at any price is generally thought not to violate the Act. Id. at 1065 n.11; Mullis v. Arco Petroleum Corp., 502 F.2d 290, 294 (7th Cir. 1974). See generally A.B.A. Antitrust Sec., Monograph No. 4, The Robinson-Patman Act: Policy and Law Vol. 1, 50-51 (1980). Nevertheless, it has also been held that an established customer who is currently purchasing one type of goods at a higher price and is denied the right to buy a lower-priced good of "like grade and quality" which is being sold to a competitor can sue under the Act. See American Can Co. v. Bruce's Juices, 187 F.2d 919, 924 (5th Cir. 1951).

The appellants in the present case allege that they are "purchasers" of the 800-type word processing machines because despite the assignment terminology in their agreement, the agreement constitutes a novation, i.e., a recission of the original sales agreement between Melbye and Xerox and the creation of a new sales agreement between appellants and Xerox. 3 In addition, appellants allege that at the time they purchased the 800-type used equipment Xerox was selling the same equipment in new condition for discriminatory prices in Minneapolis, Minnesota, Atlanta, Georgia, and other locations.

The agreement under which appellants acquired the equipment was incorporated into the complaint and provided in essence that appellants as assignees wished to acquire the equipment from the assignor (Melbye) and that the assignor was willing to assign its rights under its installment sales contract with Xerox to the assignee. Therefore, the

Assignor hereby sells, assigns, transfers and sets over to Assignee all of the Assignor's rights, obligations and interest in and to the Installment Purchase Agreement as and to the extent the same relates to the Equipment. Assignee agrees to accept and perform all rights, obligations and interest set forth in said Xerox Installment Purchase Agreement. * * * It is expressly agreed, that notwithstanding anything herein contained to the contrary (a) Assignor shall at all times remain liable to the Seller under the Purchase Agreement to perform all obligations of the buyer * * * and (b) the exercise by the Assignee of the rights assigned hereunder shall not release the Assignor from any of its duties or obligations to the Seller under the Purchase Agreement. * * *

Nevertheless, in an attachment to the assignment agreement entitled "Consent and Agreement" it was provided that Xerox consents to the assignment and "releases the Assignor and agrees to look solely to the Assignee" for performance of the Installment Purchase Agreement.

In its memorandum the district court emphasized the assignment terminology, the provision that the assignor remained liable to Xerox under the purchase agreement, and did not comment on the subsequently executed "Consent and Agreement" releasing the assignor. The court concluded that title passed from the assignor rather than Xerox and that there was nothing in the agreement from which it can be inferred that any price negotiations took place between Xerox and plaintiff. 4

We believe that the district court may have gone too far into the merits of this case, overlooked a critical provision of the agreement, and allowed facial form to predominate over plausible substance in reaching its conclusion that there were not any set of facts under which appellants could show that they were "purchasers" under the Act. Appellants contend that since the original Purchase Agreement between Gloria Melbye and Xerox prohibited any assignment of the contract, a new agreement between Xerox and the appellants had to be reached in order for the sale to take place. Furthermore, general principles of contract law support appellants' contention that the assignment and release amounted to a novation, i.e., a new contract. The Restatement of the Law, Contracts (2d) § 280 (1981) states that: "A novation is a substituted contract that includes as a party one who was neither the obligor nor the obligee of the original duty." Section 279 of the Restatement defines a substituted contract as "a contract that is itself accepted by the obligee in satisfaction of the obligor's existing duty. The substituted contract discharges the original duty and...

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