In re Midwest Milk Monopolization Litigation

• Decision Date: 11 June 1974
• Docket Number: JPML Docket No. 83,and No. 73 CV 72-W-1,73 CV 75-W-1,74 CV 80-W-1.
• Citation: 380 F. Supp. 880
• Parties: In the MIDWEST MILK MONOPOLIZATION LITIGATION. MARKETING ASSISTANCE PLAN, INC., et al., Plaintiffs, v. ASSOCIATED MILK PRODUCERS, INC., Defendant. Dane O. PETTY, d/b/a Petty Dairy, et al., Plaintiffs, v. ASSOCIATED MILK PRODUCERS, INC., et al., Defendants. UNITED STATES of America, Plaintiff, v. ASSOCIATED MILK PRODUCERS, INC., Defendant.
• Court: U.S. District Court — Western District of Missouri

380 F. Supp. 880

In the MIDWEST MILK MONOPOLIZATION LITIGATION.

MARKETING ASSISTANCE PLAN, INC., et al., Plaintiffs, v. ASSOCIATED MILK PRODUCERS, INC., Defendant.

Dane O. PETTY, d/b/a Petty Dairy, et al., Plaintiffs, v. ASSOCIATED MILK PRODUCERS, INC., et al., Defendants.

UNITED STATES of America, Plaintiff, v. ASSOCIATED MILK PRODUCERS, INC., Defendant.

JPML Docket No. 83, and Nos. 73 CV 72-W-1, 73 CV 75-W-1, 74 CV 80-W-1.

United States District Court, W. D. Missouri, W. D.

June 11, 1974.

Rebecca Schneiderman, Antitrust Div., Dept. of Justice, Midwest Section, Chicago, Ill., for the government.

Thomas R. McDade, Houston, Tex., for Marketing Assistance.

Gary R. Gurwitz, McAllen, Tex., for Petty Dairy.

Sidney Harris, Washington, D. C., for AMPI.

MEMORANDUM AND ORDER DENYING AMPI'S MOTION FOR PARTIAL SUMMARY JUDGMENT

JOHN W. OLIVER, District Judge.

I.

On March 4, 1974, AMPI filed its motion for partial summary judgment in regard to the portion of the claims asserted both by the Texas claimants and the government, as those claims relate to any alleged "loading" of the pool in any federal market order. The grounds of that motion were stated in AMPI's memorandum of points and authorities filed the same day. AMPI also filed that day a statement of undisputed facts which AMPI contends are without substantial controversy.

AMPI's motion and all subsequent filings have been made pursuant to directions made at the pretrial conference in the above cases held February 14, 1974, as the time schedule provided therein was modified by later directions of the Court. Accordingly, on March 12, 1974, the Texas claimants filed their memorandum in opposition to AMPI's pending motion and their response to AMPI's statement of undisputed facts. The government filed its memorandum in opposition and its response to AMPI's statement of undisputed facts on March 26, 1974. With leave of court, the Secretary of Agriculture filed an amicus curiae response in opposition to AMPI's motion on April 15, 1974. AMPI filed a reply memorandum to all memoranda in opposition filed by all parties on May 2, 1974. Texas claimants filed a reply memorandum in further opposition to AMPI's pending motions on May 13, 1974. And AMPI filed its supplemental memorandum in support of its motion for partial summary judgment on June 6, 1974.

We have carefully considered all of the briefs and have concluded that there are three separate and alternative grounds which require that AMPI's motion be denied. We have also concluded that it would not be proper or appropriate that the questions presented by AMPI's motion be certified to the Court of Appeals pursuant to § 1292(b), Title 28, United States Code.

II.

As a first and alternative ground, AMPI's motion must be denied because AMPI has not demonstrated that "there is no genuine issue as to any material fact" within the meaning of Rule 56(c) of the Rules of Civil Procedure. Rather than following the procedures directed at the February 14, 1974 pretrial conference, which contemplated, among other things, the execution of a stipulation of documentary evidence, AMPI filed what it captioned "Statement of Undisputed Facts." AMPI, obviously without consultation with opposing counsel, stated that it believed that everything it had stated in that document should be accepted "without substantial controversy" and suggested that "in the absence of written exceptions supported by discovery material, pleadings or other documents now on file, filed in or with plaintiff's responsive brief, these facts will be deemed to be uncontroverted." As the responses filed by the Texas claimants and the government establish, very little is undisputed except the fact that the various federal orders to which AMPI made reference had been published in the Federal Register.

We do not anticipate that there could be any legitimate genuine issue in regard to whether and when the various orders and the proceedings in connection with them were published in the Federal Register. We agree, of course, with Texas claimants' and the government's suggestion that those orders speak for themselves and are the best evidence under the circumstances. The remainder of AMPI's statement, however, may not properly be called a statement of facts because generally it is an outline of the legal arguments made in AMPI's memorandum of points and authorities, and is replete with conclusory statements of law and mixed questions of law and fact.

While AMPI does make a limited number of general references to what it concedes are "thousand of pages of deposition transcripts and hundreds of thousands of pages of documents produced in this case," it has not filed any affidavits nor has it made any systematic attempt either to define or to establish what it deems to be the controlling material facts which are relevant to its basic legal theories. Both the Texas claimants' and the government's responses to defendant AMPI's statement of undisputed facts establish that the parties plaintiffs vigorously dispute and deny AMPI's claims that it in fact complied with the applicable provisions of the relevant federal orders and that AMPI in fact furnished the Department of Agriculture information required by it; indeed, the Texas claimants and the government state their belief that at least in some instances AMPI made false reports to the government.

We have considered AMPI's discussion of whether material factual issues were placed in dispute by the responses of opposing counsel, as stated on page 23 and following of their reply memorandum. We find and conclude that AMPI's argument in regard to the standards and purpose of Rule 56 is not tenable. The fact that there may be substantial evidence in support of what AMPI calls its "keystone statement" that AMPI's association of out-of-area milk "fully complied with the applicable provisions of the Order then in effect" cannot support the conclusion that there is no genuine issue as to that particular fact, assuming, of course, that such fact is a "material" fact, within the meaning of Rule 56.

Neither Rule 56 nor the many cases construing that rule authorize this Court to deem any fact "to be uncontroverted" unless "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." AMPI's effort to proceed in a manner not authorized by Rule 56 is untenable. We find and conclude that AMPI has not presented a proper case for adjudication under Rule 56. We further find and conclude that it is not practicable for the Court to proceed pursuant to Rule 56(d) for the reason that AMPI has not appropriately attempted to establish any material facts other than the existence of the various federal orders. The conclusions stated in regard to the two other separate and alternative grounds for denying AMPI's pending motion establish that the entry of an order specifying that the issuance of the various federal orders appear without substantial controversy would be a useless and futile judicial act.

III.

AMPI's reply memorandum implicitly recognizes that the underlying questions presented by its present motion for partial summary judgment were, in substance, earlier presented to Judge Seals and decided by him in his opinion reported in 338 F.Supp. 1019. AMPI recognizes that the "law of the case" doctrine involves the exercise of judicial discretion and contends that such discretion should be exercised against this Court's recognition of the rationale of Judge Seals' opinion. AMPI argues that Judge Seals was wrong and that this Court, in the exercise of its discretion, should give fresh consideration to AMPI's reiterated legal arguments to the end that a different result be reached.

As a second and alternative ground for denial of AMPI's pending motion, we believe that proper exercise of our discretion requires that we give full force and effect to the "law of the case" doctrine and that we apply the rationale of Judge Seals' earlier opinion to AMPI's pending motion for the reason that we are convinced that Judge Seals correctly stated and applied the controlling law.

Judge Seals' opinion in Marketing Assist. Plan, Inc. v. Associated Milk Pro. Inc., (S.D.Tex.1972) 338 F.Supp. 1019, 1023, shows that AMPI grounded its earlier motion to dismiss, among other things, upon the related theories of "(1) statutory exemption of milk cooperatives from antitrust laws;" and "(2) immunity stemming from participation in a marketing plan under a federal milk order." Although AMPI's arguments in support of its pending motion for partial summary judgment may be stated in a bit different language, we believe it is apparent that AMPI must have relied generally upon the same legal theories to support its earlier motion to dismiss.

We find and conclude therefore that Judge Seals' determination of AMPI's earlier motion to dismiss should, in the exercise of our discretion, be considered as the law of the case and, as such, establishes a second and alternative ground as to why AMPI's pending motion should be denied. In order, however, to avoid any legitimate contention that such action could be said to be an abuse of discretion, we shall specifically find and conclude in the next part of this opinion that as a matter of independent judgment, uninfluenced by Judge Seals' opinion, and as a third and independent ground, AMPI's legal arguments in support of its pending motion for partial summary judgment are untenable and contrary to controlling law.

IV.

It is somewhat difficult to put one's finger on a precise statement of AMPI's principal legal theory other than to note its frequent and reiterated suggestion that the principles applied in Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973), require that the pending motion be granted, AMPI argues in the first place that questions concerning "loading the pool"...