Green Country Food v. Bottling Group, No. 02-5076.

Decision Date22 June 2004
Docket NumberNo. 02-5076.
Citation371 F.3d 1275
PartiesGREEN COUNTRY FOOD MARKET, INC., d/b/a Collinsville IGA; Green Country Food Market No. 3, Inc., d/b/a Harvest Fine Foods No. 3; Green Country Food Market No. 4, Inc., d/b/a Harvest Find Foods No. 4; Green Country Food Market No. 5, Inc., d/b/a Harvest Fine Foods No. 5; Green Country Food Market No. 6, Inc., d/b/a Cushing IGA; Brissa, Inc., d/b/a Foodworld IGA; Plaza Redbud Inc., d/b/a Plaza Redbud Supermarket; and Net-mor Food Outlet, Inc., d/b/a Net-mor Food Outlet, Plaintiffs-Appellants, v. BOTTLING GROUP, LLC and Bottling Group Holdings, Inc., Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Keith A. Ward (Nancy C. Curtis with him on the briefs) Richardson, Stoops, Richardson & Ward, Tulsa, OK, for Plaintiffs-Appellants.

Jon E. Brightmire (James P. McCann and R. Charles Wilkin III, with him on the brief) Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, OK, for Defendants-Appellees.

Before EBEL, BALDOCK, and KELLY, Circuit Judges.

EBEL, Circuit Judge.

Plaintiffs, retail grocery stores operating in the Tulsa, Oklahoma area, brought this diversity action under the Oklahoma Antitrust Reform Act against their local distributor of Pepsi and affiliated beverage products and its holding company ("Bottling Group" and "Holdings"). Plaintiffs alleged that Bottling Group unlawfully discontinued sales to Plaintiffs in response to a price discrimination lawsuit Plaintiffs had previously brought against Bottling Group's predecessor-in-interest. The district court granted summary judgment in favor of Bottling Group and Holdings. On appeal, Plaintiffs primarily challenge the district court's definition of the relevant product market. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

BACKGROUND

Plaintiffs are corporations that operate grocery stores, each owned in whole or in part by either Steven Davis or Brian Honel. Plaintiff Brissa, Inc. (operated by Mr. Honel) and Plaintiff Plaza Redbud Inc. (operated by Mr. Davis) had purchased Pepsi and affiliated beverage products from Beverage Products Corporation ("BPC"), the exclusive distributor of these products in the Tulsa area. By 1997, Mr. Honel and Mr. Davis had recognized that they were often unable to sell their Pepsi products at prices competitive with other area grocery stores. Mr. Honel and Mr. Davis compared their invoices from BPC and discovered that BPC had been charging them different wholesale prices for the beverage products it distributed. On January 5, 1999, Plaintiffs Brissa and Plaza Redbud sued BPC for price discrimination under Oklahoma antitrust laws.

On February 8, BPC transferred all assets, liabilities, and stock to Bottling Group Holdings, Inc. ("Holdings"), which the same day transferred the same assets, liabilities, and stock to Bottling Group, LLC ("Bottling Group"). Bottling Group is majority owned by Holdings, and Holdings is indirectly wholly owned by The Pepsi Bottling Group, Inc.

On February 11, Bottling Group discontinued sales to Plaintiffs Brissa and Plaza Redbud because of a "distinct decrease in the level of trust" between Bottling Group and each grocery store stemming from the pending price discrimination lawsuit. Bottling Group has also refused to distribute its products to other Plaintiff grocery stores that Mr. Honel and Mr. Davis have acquired. Plaintiffs therefore have no access, other than retail purchase, to the 155 Pepsi and affiliated beverage products distributed by Bottling Group.

Plaintiffs filed this lawsuit against both Bottling Group and Holdings under §§ 203 and 205 of the Oklahoma Antitrust Reform Act, Okla. Stat. tit. 79, § 201 et seq. The complaint alleged monopolization, attempt to monopolize, and conspiracy to monopolize under § 203(B) and denial of access to an essential facility under § 203(C), and requested injunctive relief and monetary damages under § 205. All allegations were predicated on Bottling Group's refusal to deal with Plaintiffs following Plaintiffs' initiation of the price discrimination lawsuit against BPC.

The district court denied Plaintiffs' request for a preliminary injunction and granted summary judgment in favor of Bottling Group and Holdings. The district court held that Plaintiffs had not pled a claim under § 203(A) of the Oklahoma Antitrust Reform Act, which prohibits unilateral acts in restraint of trade, and that their claims under §§ 203(B) and 203(C) of the Act failed because Plaintiffs had not proven that the beverage products distributed by Bottling Group comprised a relevant product market.

Plaintiffs timely filed this appeal. Plaintiffs argue that the complaint stated a claim under § 203(A) and, in the alternative, that the complaint should have been treated by the district court as constructively amended, under Federal Rule of Civil Procedure 15(b), to include a § 203(A) claim. Plaintiffs also argue that the district court erred in requiring Plaintiffs to offer proof of a relevant product market and, in the alternative, in rejecting Plaintiffs' narrow definition of the relevant product market.

DISCUSSION

We review a grant of summary judgment de novo, applying the same standard used by the district court. State of Utah v. Babbitt, 53 F.3d 1145, 1148 (10th Cir.1995). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). We construe the facts and inferences therefrom in the light most favorable to the non-moving party. Babbitt, 53 F.3d at 1148.1

A. Whether Plaintiffs Properly Pled a § 203(A) Claim
1. The complaint

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The statement must give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

A plaintiff should not be prevented from pursuing a claim simply because of a failure to set forth in the complaint a theory on which the plaintiff could recover, provided that a late shift in the thrust of the case will not prejudice the other party in maintaining its defense. Evans v. McDonald's Corp., 936 F.2d 1087, 1090-91 (10th Cir.1991). The liberalized pleading rules, however, do not permit plaintiffs to wait until the last minute to ascertain and refine the theories on which they intend to build their case. Id. at 1091. This practice, if tolerated, "would waste the parties' resources, as well as judicial resources, on discovery aimed at ultimately unavailing legal theories and would unfairly surprise defendants, requiring the court to grant further time for discovery or continuances." Id. (affirming district court's determination precluding plaintiff from litigating new legal theory raised for first time in response to defendant's motion for summary judgment).

In Dunn v. Ewell (In re Santa Fe Downs), the complaint cited one section of the Bankruptcy Act but the plaintiffs attempted to introduce evidence pertaining to a second section. 611 F.2d 815, 816 (10th Cir.1980). We held that the plaintiffs had not properly stated a claim under that second section. See id. We noted that "[w]e cannot say that the incorrect statutory citation was an unimportant detail implicitly corrected by the facts alleged in the complaint." Id. "[A] fundamental statutory citation is not a mere fact and, if incorrect, may topple the structure of the complaint, particularly where the citation appears to represent the legal theory upon which the plaintiff relies." Id.

In this case, Plaintiffs did not mention § 203(A) in their complaint but referred only to §§ 203(B), 203(C), and 205.2 Plaintiffs' allegations focused exclusively on alleged monopolization under § 203(B) and denial of access to an essential facility under § 203(C). Plaintiffs failed to mention § 203(A), which prohibits unilateral acts in restraint of trade, either in form or in substance.

As in Dunn, we cannot say that this omission was "an unimportant detail." See 611 F.2d at 816. The complaint did not place Defendants Bottling Group and Holdings on notice of the need to defend against a § 203(A) claim, as was demonstrated by Defendants' failure to offer any defense to a § 203(A) claim in their initial motion for summary judgment. Plaintiffs' citation to § 203(A) in their response to Defendants' motion did not cure that error. See Evans, 936 F.2d at 1091. A claim for unilateral acts in restraint of trade is sufficiently distinguishable from either a monopolization or an essential facilities claim that Plaintiffs should have mentioned the claim in the complaint. Accordingly, the district court did not err in holding that Plaintiffs had not pled a § 203(A) claim in their complaint.

2. Rule 15(b)

We review a district court's denial of a motion to treat the complaint as amended for abuse of discretion. Koch v. Koch Indus., Inc., 203 F.3d 1202, 1216 (10th Cir.2000). Federal Rule of Civil Procedure 15(b) provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party...

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