In re Airport Car Rental Antitrust Litigation, MDL No. 338.

Decision Date16 April 1981
Docket NumberMDL No. 338.
CourtU.S. District Court — Northern District of California


F. Douglas Ruud, Alan D. Judy, Terry E. Thomson, Diamond & Sylvester, Seattle, Wash., Ralph Jonas, Michael D. Donahue, Richard N. Rust, Jonas, Donahue, Kinigstein & Hoffman, Los Angeles, Cal., for plaintiff Budget Rent-A-Car of Washington-Oregon, Inc.

James J. Walsh, Pillsbury, Madison & Sutro, San Francisco, Cal., Daniel R. Shulman, Michael P. Sullivan, Gray, Plant, Mooty, Mooty & Bennett, Minneapolis, Minn., Robert D. Raven, Morrison & Foerster, San Francisco, Cal., Jerome J. Shestack, Arthur H. Kahn, Ira P. Tiger, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for defendant The Hertz Corp.




With the advent of the modern jet liner, air transportation has become a form of mass transit. In 1979, some 317 million passengers were carried by commercial airlines in the United States.1 As a consequence airports served by commercial airlines have become major transportation hubs providing a wide range of services to the travelling public. Among the most essential of these services are ground transportation to and from airports, such as bus, taxi and limousine service, and car rental agencies and automobile parking facilities. The authorities operating public airports are engaged in a variety of ways in arranging to have such services provided. In the case of car rental companies, they lease space to the companies to maintain service counters and other facilities at airports. Access to such space to provide on-airport service is of value to car rental companies who have therefore competed vigorously for the limited space which airport authorities make available for that purpose.

This litigation is an outgrowth of that competition among car rental companies. In actions commenced in several districts, a number of car rental companies complained in substance that The Hertz Corporation ("Hertz"), National Car Rental System, Inc. ("National") and Avis Rent a Car System ("Avis") engaged in joint activities to influence airport authorities to exclude competing companies from airports in violation of Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2).2 In the particular action now before the Court on the motion of defendants Hertz and National for summary judgment, the plaintiff is Budget Rent A Car of Washington-Oregon, Inc. ("Budget"). Budget alleged that defendants engaged in a conspiracy to eliminate competition in the on-airport rental market and, in furtherance of that conspiracy, jointly influenced and engaged with airport authorities to adopt and enforce certain standards and requirements regarding eligibility to engage in on-airport car rental and the manner in which that business would have to be conducted. Budget alleged that those standards and requirements precluded it from competing in the on-airport car rental market at Portland and Eugene, Oregon and Seattle and Spokane, Washington.3 Budget also alleged that defendants entered into contracts with airport authorities which prohibited other car rental operators from entering the on-airport market and established unreasonably high minimum guarantees, that they opposed applications of other car rental companies in bad faith, and that they fixed rental rates in the on-airport market.

Motions for summary judgment were previously filed by these defendants and denied while this litigation was assigned to a different judge of this court. See In re Airport Car Rental Antitrust Litigation, 474 F.Supp. 1072 (N.D.Cal.1979). The prior ruling held that defendants' joint actions to influence airport authorities were not exempt from the antitrust laws under the so-called Noerr-Pennington doctrine4 because they were directed at commercial activities of those authorities. Following reassignment of these cases to this Court, defendants renewed their motions, albeit directed at a different plaintiff and with respect to different airports.

The Court is mindful of the institutional and policy considerations militating against reconsideration of an earlier ruling by a judge of the same court. As a rule, "the various judges who sit in the same court should not attempt to overrule the decisions of each other ...." Castner v. First National Bank of Anchorage, 278 F.2d 376, 397 (9th Cir. 1960) (citing Shreve v. Cheesman, 69 F. 785, 791 (8th Cir. 1895)). This rule is premised upon principles of comity and uniformity, and the need to preserve the orderly functioning of the judicial process. Castner, supra, 278 F.2d at 379-80. But it does not raise an absolute bar to reexamining questions previously determined. It is well established in this circuit that one district judge in a multi-judge court may modify or overrule the interlocutory order of another judge sitting in the same case for "cogent reasons" or where "exceptional circumstances" are presented. Greyhound Computer Corp. v. IBM, 559 F.2d 488 (9th Cir. 1977), cert. denied, 434 U.S. 1040, 98 S.Ct. 782, 54 L.Ed.2d 790 (1978); United States v. Desert Gold Mining Co., 433 F.2d 713 (9th Cir. 1970); Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804 (9th Cir.), cert. denied, 375 U.S. 821, 84 S.Ct. 59, 11 L.Ed.2d 55 (1963); Castner, supra. An order denying a motion for summary judgment is generally treated as interlocutory and subject to reconsideration by the court at any time. Preaseau v. Prudential Insurance Co., 591 F.2d 74, 79-80 (9th Cir. 1979); Pearson v. Dennison, 353 F.2d 24, 28 (9th Cir. 1965). It makes no difference whether the interlocutory order is reconsidered by the same judge or by a different judge to whom the case has been reassigned. Desert Gold, supra, 433 F.2d at 715.

Whether to reconsider a question previously decided has been left to the district judge's sound discretion. Greyhound, supra; Castner, supra. The Ninth Circuit explored the relevant considerations in this way:

We are concerned here with a second judge to whom a case has been assigned after a motion ... for summary judgment has been denied by a prior judge and the case is set for trial. He is charged with the responsibility of conducting the trial to its conclusion. Yet after examination of the record he is firmly convinced that an error of law has been committed in denying the motions. He is faced with a dilemma: shall he defer here to the rule of comity and defer to the "erroneous" ruling of the first judge thereby allowing a useless trial to proceed, or shall he reverse the order of the prior judge and permit an immediate appeal, where he in turn may be reversed because he abused his discretion in overruling his colleague?
Under such circumstances, we feel that there is no abuse of discretion in overruling the prior judge. The second judge must conscientiously carry out his judicial function in a case over which he is presiding. He is not doing this if he permits what he believes to be a prior erroneous ruling to control the case. He can settle questions presently without compelling the parties to proceed with what may be a futile and expensive trial. We think that these are cogent reasons and exceptional circumstances which justify a departure from the rule of comity within the permissible limits of judicial discretion.

Castner, supra, 278 F.2d at 380.

It is argued that the prior judge's ruling should not be disturbed because it constitutes the "law of the case." That phrase, as the Ninth Circuit has observed, "has been used to describe the multiple situations in which one court considers prior rulings of its own or other courts both on the trial and appellate levels." Castner, supra, 278 F.2d at 379 n.3. See also Annot., 20 A.L.R.Fed. 13 at § 3(b) (1974); 1B Moore's Federal Practice ¶ 0.4044. Whether it should apply in the absence of an intervening appellate court decision is not settled. See Castner, supra. But even if it were applicable, it would not bar reconsideration of the prior ruling:

The law of the case is not entitled to the same respect as the doctrine of stare decisis. The law of the case does not demand obsequiousness right or wrong. Mr. Justice Holmes said that the phrase "law of the case" merely expressed the practice of courts generally to refuse to reopen what had been decided but was not a limit on their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). The only sensible thing for a trial court to do is to set itself right as soon as possible when convinced that the law of the case is erroneous. There is no need to await reversal. 1B Moore's Federal Practice ¶ 0.4041, at 407. To modify the law of the case is primarily a matter of "good sense."
* * * * * * There is no suggestion of forum shopping in this case. That would not be sanctioned, but even that would not require us to affirm error. We held in Bowles v. Wilke, 175 F.2d 35, 37 (7th Cir.), cert. denied, 338 U.S. 861, 70 S.Ct. 104, 94 L.Ed. 528 (1949), that "the only restraint upon a second judge in passing upon an interlocutory issue decided by another judge in the same case is of comity only, which in no way infringes upon the power of the second judge to act.

Champaign-Urbana News Agency, Inc. v. J. L. Cummins News Co., 632 F.2d 680, 683 (7th Cir. 1980).

The implication of First Amendment rights presents a cogent reason for reconsideration where, as here, substantial doubts are raised concerning the validity of plaintiff's claims. The pendency of a meritless suit can itself chill the exercise of those rights. Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Board of Culinary Workers, 542 F.2d 1076 (9th Cir. 1976), cert. denied, 430 U.S. 940, 97 S.Ct. 1571, 51 L.Ed.2d 787 (1977); Federal Prescription Service, Inc. v. American Pharmaceutical Asso., 471 F.Supp. 126, 129 (D.D. C.1979). In addition,...

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