Gas-A-Car, Inc. v. American Petrofina, Inc.

• Decision Date: 19 September 1973
• Docket Number: No. 72-1772.,72-1772.
• Citation: 484 F.2d 1102
• Parties: GAS-A-CAR, INC., a Colorado corporation, et al., Plaintiffs-Appellants, v. AMERICAN PETROFINA, INC., and American Petrofina Company of Texas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

484 F.2d 1102 (1973)

GAS-A-CAR, INC., a Colorado corporation, et al., Plaintiffs-Appellants, v. AMERICAN PETROFINA, INC., and American Petrofina Company of Texas, Defendants-Appellees.

No. 72-1772.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted July 9, 1973.

Decided September 19, 1973.

Daniel L. Berman, Salt Lake City, Utah (Francis P. King, Denver, Colo., on the brief), for plaintiffs-appellants.

Gordon G. Greiner, Denver, Colo. (Donald O. Kinonen and Graham M. Clark, Jr., Denver, Colo., on the brief), for defendants-appellees.

Before PHILLIPS, HILL and McWILLIAMS, Circuit Judges.

HILL, Circuit Judge.

This appeal seeks review of a decision by the federal district court for Colorado dismissing the second of two counts set out in appellants' complaint for failure to state a claim upon which relief can be granted. Rule 12(b)(6) F.R. Civ.P. Count I of the complaint charges appellees-petroleum companies with attempting to monopolize the sale of gasoline in the Denver, Colorado, area in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. Count II, which was dismissed by the lower court, alleges that certain appellees have committed primary line price discrimination against appellants in violation of § 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a). Identical damages are requested under both counts, and both counts are premised upon related facts, namely, the distribution and pricing of gasoline in Denver and adjacent markets.

The appellees, American Petrofina, Inc., and American Petrofina Company of Texas, engage on an integrated basis in the production, manufacturing, transportation and marketing of refined petroleum products, including gasoline. In the Denver metropolitan market the appellees engage in the wholesale marketing of gasoline to their branded jobbers and dealers. The appellants, Gas-A-Car, Inc., R. L. Timms and D. N. Timms, operate self-serve unbranded gasoline stations in the Denver area. Appellants do not wholesale gasoline to other dealers. Nor are appellants customers of appellees or of appellees' jobbers or dealers.

Count I charges the appellees with intending to suppress and eliminate the competition of appellants by combining and conspiring with others: (1) to fix and control the retail prices of gasoline in the Denver metropolitan market; (2) to fix and control the prices at which dealers and rack jobbers purchase and resell gasoline in the Denver metropolitan market; (3) to fix and control the price appellants pay for gasoline; (4) to refuse to sell appellants gasoline for resale on a price supported basis; (5) to sell gasoline below cost in the Denver market; and (6) to engage in prolonged price wars with the intent of controlling the price at which appellants sell gas in the Denver market. Count II charges the suppliers-appellees with discriminating in price on the sale of gasoline between its jobbers and dealers in the Denver metropolitan market and its jobbers and dealers in other markets in states adjoining Colorado and in the State of Texas in violation of § 2(a) of the Robinson-Patman Act. The effect of this price discrimination is (1) to eliminate the competition of unbranded self-serve marketers such as appellants; (2) to control the gasoline prices of unbranded self-serve marketers; (3) to eliminate the established differential between the price of gasoline marketed at branded service stations and the price at unbranded self-serve service stations; (4) to sell gasoline at below supplier's cost; (5) to erode and destroy the competitive price structure, thereby causing sharply declining prices in the sale and distribution of gasoline; (6) to prolong and intensify destructive price wars in the sale and distribution of gasoline.

Upon motion by appellees, the district court dismissed Count II of the complaint for failure to state a claim upon which relief could be granted. Dismissal was based on the district court's holding that since the complaint did not allege that appellants were in competition with appellees on the same distribution level, it did not state a primary line violation of § 2(a).

After granting appellees' motion to dismiss, the district court, pursuant to Rule 54(b), determined there was no just reason for delaying entry of final judgment on the order, and accordingly entered final judgment dismissing Count II. On appeal two issues are presented for consideration. First, whether the district court's dismissal is properly appealable under Rule 54(b). Second, whether there is a primary line violation of § 2(a) directed against appellants.

Appellees first contend our court lacks jurisdiction to hear this appeal because the district court improperly invoked Rule 54(b). Admittedly, determining whether Rule 54(b) was properly invoked is no easy matter. If there had been no certification as required by Rule 54(b), the issue would be settled for we would clearly lack jurisdiction. Skelly Oil Co. v. Zimmerman, 332 F.2d 618 (10th Cir. 1964). But the district court properly certified the order and thus our inquiry must be directed toward whether the lower court properly issued the Rule 54(b) certificate. Baca Land & Cattle Co. v. New Mexico Timber, Inc., 384 F.2d 701 (10th Cir. 1967).

Rule 54(b) provides, in relevant part:

When more than one claim for relief is presented in an action . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

The paramount question relating to jurisdiction is whether the appellants' complaint involves two separate claims or a single claim supported by two legal theories. If there is but one claim, the district court erred in certifying the dismissal order pursuant to Rule 54(b). Appellees contend both counts of the complaint stem from the same aggregate of operative facts and therefore multiple claims are not present. It is their position that as both causes of action are based on the alleged discriminatory pricing structure there is actually but one claim for relief. We do not believe, however, the rule for determining multiple claims mandates the rigidity appellees suggest. Two Supreme Court cases lead us to this conclusion. In Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956), the complaint contained four counts. The first count sought damages under the antitrust laws for injury to three of Mackey's commercial ventures. The remaining counts sought damages under a common law approach for injuries sustained by these ventures. The district court dismissed the first two counts and certified them under Rule 54(b). The Supreme Court held Rule 54(b) was properly invoked because Count Two was independent of Counts Three and Four since it involved a separate business. Count One was found to involve some of the same facts as Counts Three and Four, but the Court nevertheless held that "there is no doubt that each of the claims dismissed is a `claim for relief' within the meaning of Rule 54(b), or that their dismissal constitutes a `final decision' on individual claims." 351 U.S. at 436, 76 S.Ct. at 900. Another case decided the same day as Sears held that a certified judgment on plaintiff's claim was appealable even though a counterclaim, arising in part out of the same transaction as plaintiff's claim, remained unadjudicated. Cold Metal Process Co. v. United Eng'r & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L. Ed. 1311 (1956). Based upon the above two cases we are convinced that Count I in the case at bar is not so inherently inseparable from or closely related to the claims in Count II that the district court has abused its discretion in certifying this case pursuant to Rule 54(b). Admittedly many of the same facts will be used to prove both counts, but the facts necessary to prove Sherman §§ 1 and 2 violations need not be totally identical to those proving a Robinson-Patman § 2(a) primary line discrimination. We hold appellants' complaint sufficiently states two separate claims for relief as required by Rule 54(b).

Appellees nevertheless argue that even if the complaint states separate claims for relief, our court still lacks jurisdiction because dismissal of Count II is not a final order as required by 28 U.S.C. § 1291. They reason that under Count I appellants will still be allowed to show there is a discriminatory pricing structure utilized by appellees. It follows, so the argument goes, that dismissal of Count II does not prevent them from seeking whatever relief they can show is justified.

Our court has held that a decision or decree is final for purposes of appeal when the litigation between the parties on the merits of the case is terminated and nothing is left to be done except enforce by execution what has been determined. First Nat'l Bank v. Johnson County Nat'l B. & T. Co., 331 F.2d 325 (10th Cir. 1964); Reeves v. Beardall, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478 (1942). We have held above that Count II is a separate claim for relief and thus its dismissal effectively terminates it as a claim. Further prosecution of this case under Count I would not resolve the issues contained in the dismissed Count II, and thus there is nothing left to be done except appeal.

As a final attack on our court's jurisdiction, appellees suggest we avoid hearing this case since at best it will be a piecemeal review. Admittedly trial courts should be reluctant to enter Rule 54(b) orders since the purpose of this rule is a limited one: to provide a recourse for litigants when dismissal of less than all their claims will create undue hardships. "The power which this Rule confers upon the trial judge should be used only `in the infrequent harsh case' as an instrument for the improved administration of justice and the more satisfactory disposition of litigation in the light of the...