Kaiser Cement Corp. v. Fischbach and Moore, Inc., 85-1846

• Citation: 793 F.2d 1100
• Decision Date: 08 July 1986
• Docket Number: No. 85-1846,85-1846
• Parties: , 1986-2 Trade Cases 67,196, RICO Bus.Disp.Guide 6322 KAISER CEMENT CORPORATION, a Delaware corporation, Plaintiff-Appellant, v. FISCHBACH AND MOORE, INC., the Howard P. Foley Co., a District of Columbia corporation, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1100

793 F.2d 1100

55 USLW 2107, 1986-2 Trade Cases 67,196,

RICO Bus.Disp.Guide 6322

KAISER CEMENT CORPORATION, a Delaware corporation, Plaintiff-Appellant, v. FISCHBACH AND MOORE, INC., the Howard P. Foley Co., a District of Columbia corporation, Defendants-Appellees.

No. 85-1846.

United States Court of Appeals Ninth Circuit.

Argued and Submitted January 15, 1986.

Decided July 8, 1986.

Les J. Weinstein, Christopher Layne, Blecher, Collins & Weinstein, Los Angeles, Cal., for plaintiff-appellant.

John N. McBaine, Lord, Day & Lord, New York City, Joe Sims, Robert McDermott, Jr., Jones, Day, Reavis & Pogue, Washington, D.C., for defendants-appellees.

On Appeal From the United States District Court for the Northern District of California.

Before POOLE, BEEZER and KOZINSKI, Circuit Judges.

BEEZER, Circuit Judge:

Kaiser appeals a grant of summary judgment for defendants. ¹ Kaiser claims that defendants conspired to fix prices in the electrical construction industry in violation of the Sherman Act, 15 U.S.C. Sec. 1, ² California's Cartwright Act, Cal.Bus. & Prof.Code p 16720 et seq., and the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. Sec. 1961 et seq. Kaiser also claims that defendants committed fraud. ³ The district court held that Kaiser could not establish any damage and granted summary judgment. We AFFIRM.

FACTS

In 1979, Kaiser invited bids from several electrical construction companies for work at its Permanente, California cement plant. Three companies submitted bids, Fischbach & Moore, Inc. (Fischbach), the Howard P. Foley Company (Foley), and Roy M. Butcher Electric (Butcher). Kaiser alleges that Foley, Fischbach, and others conspired to fix bid prices.

Kaiser awarded the contract to Foley. Under the contract, Kaiser assumed the responsibility of coordinating the work. Foley's work was to be completed within ten and a half months but actually took 24 months. Foley anticipated expending 67,000 manhours but actually used 216,000. Foley claimed that Kaiser had breached the contract and that Foley's extra costs resulted from that breach. ⁴

Foley filed a state court action to compel arbitration as required by the contract. Upon removal, the district court ordered serial arbitration between Kaiser and Foley and also between Kaiser and other contractors involved in the Permanente Project. The Kaiser-Foley arbitration panel received extensive oral and documentary evidence. The arbitrators awarded Foley $330,998 for change orders and $3,455,206 for delay and disruption. ⁵ The arbitration panel did not explain the basis upon which it calculated the award amounts. ⁶ The panel considered evidence of Foley's actual costs, ⁷ an audit requested by the arbitrators, exhibits 2 and 7, which may have been fabricated, and Frank Lench's testimony which was claimed to be false. ⁸ Kaiser argues that the arbitrators based the award on the fraudulent evidence. On August 5, 1983, the district court observed that "[I]t is not self-evident how the arbitrators determined the amount of the award." Kaiser reasons, however, that the award incorporates the fixed price and therefore constitutes injury.

Three days before confirmation of the award, Kaiser filed this antitrust action. The district court granted Foley's motion for summary judgment on March 4, 1985, stating that "[t]he arbitrators having determined the actual cost of Foley's work and the fair compensation to which Foley is entitled for that work, there remains no genuine issue of material fact because there can be no damage to Kaiser." The RICO, Cartwright Act, and fraud claims were also dismissed because Kaiser failed to establish injury. ⁹ On appeal the parties raise questions of the preclusive effect of an arbitration award in subsequent antitrust litigation and the applicability of judicial estoppel to Kaiser's argument in the arbitration litigation. We affirm the district court on other grounds and do not consider these issues. ¹⁰

ANALYSIS

Summary judgment is appropriate in antitrust actions when there is no "significant probative evidence tending to support the complaint." Robert's Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403, 1406 (9th Cir.1984) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968)). See Mutual Fund Investors, Inc. v. Putnam Management Co., 553 F.2d 620, 624 (9th Cir.1977). Summary judgment is proper when the moving party establishes that he is entitled to judgment as a matter of law and that no genuine issue of material fact exists. ¹¹ Jewel Cos., Inc. v. Pay Less Drug Stores Northwest, Inc., 741 F.2d 1555, 1559 (9th Cir.1984). The granting of a summary judgment is reviewed de novo. Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir.1985). On review, we must view the evidence and inferences therefrom in the light most favorable to the party opposing summary judgment. Diaz v. American Telephone & Telegraph, 752 F.2d 1356, 1362 (9th Cir.1985); Jewel Cos., 741 F.2d at 1559.

"The initial burden of showing the absence of material factual issues rests on the proponent of a summary judgment motion. Once that burden is met, however, the opponent must counter with specific factual allegations revealing a genuine dispute of fact in order to preclude summary judgment." International Union of Bricklayers & Allied Craftsman Local Union No. 20 AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985). A party opposing summary judgment does not have to file any countervailing materials when the movant's papers are insufficient on their face to demonstrate the lack of any material issue of fact. Lew, 754 F.2d at 1423; Sheet Metal Workers' International Association Local No. 355 v. NLRB, 716 F.2d 1249, 1254 (9th Cir.1983); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). Once the moving party establishes that he would be entitled to a directed verdict at trial unless contradicted, the burden shifts to the opposing party to show that a contradiction is possible. ALW, Inc. v. United Air Lines, Inc., 510 F.2d 52, 55 (9th Cir.1975); Stansifer v. Chrysler Motors Co., 487 F.2d 59, 63 (9th Cir.1973); Doff v. Brunswick Corp., 372 F.2d 801, 804 (9th Cir.1966), cert. denied, 389 U.S. 820, 88 S.Ct. 39, 19 L.Ed.2d 71 (1967). If the party moving for summary judgment presents evidence which, taken by itself, would establish a right to a directed verdict at trial, the motion must be granted in the absence of any presentation by the opposing party. THI-Hawaii, Inc. v. First Commerce Financial Corp., 627 F.2d 991, 993 (9th Cir.1980); Neely v. St. Paul Fire & Marine Insurance Co., 584 F.2d 341, 343 (9th Cir.1978); Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir.1972). The resisting party must respond with more than mere hearsay and legal conclusions. ¹² Doff, 372 F.2d at 804; see Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979).

To prevail, an antitrust plaintiff must establish a violation of the antitrust laws and an actual injury attributable to something the antitrust laws were designed to prevent. J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 562, 101 S.Ct. 1923, 1927, 68 L.Ed.2d 442 (1981); Kapp v. National Football League, 586 F.2d 644 (9th Cir.1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979). Injury is also the sine qua non of recovery by plaintiff on every one of its other theories of recovery. The Cartwright Act, Lowell v. Mother's Cake & Cookie Co., 79 Cal.App.3d 13, 23, 144 Cal.Rptr. 664, 671 (1978); common law fraud, Committee on Children's Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 220, 197 Cal.Rptr. 783, 797, 673 P.2d 660, 674 (1983); and RICO, Sedima S.P.R.L. v. Imrex Co., --- U.S. ----, 105 S.Ct. 3275, 3286, 87 L.Ed.2d 346 (1985). In sum, without a showing of injury, plaintiff cannot recover.

Thus, Kaiser would have to have proved that Foley violated the antitrust laws by participating in an illegal conspiracy to fix the price of its electrical construction services; and that Kaiser was injured by having paid a price that was fixed and was in excess of the fair market value of the goods or services delivered to Kaiser.

Foley introduced sufficient evidence to indicate that even if a price-fixing conspiracy existed, Kaiser was not injured because the arbitrators awarded Foley an amount they considered to be fair without regard to any bid-rigging. ¹³ Kaiser failed to rebut Foley's showing that the amount of the arbitrators' award constituted a fair price for Foley's performance under the construction contract. Kaiser failed to show injury and Foley was entitled to summary judgment.

AFFIRMED.

1 Appellee Fischbach and Moore, Inc. ("Fischbach"), one of the unsuccessful bidders for the contract awarded to Foley, joins in this appeal pursuant to Ninth Circuit Rule 13(j).

Kaiser's antitrust claim was before Judge Orrick.

The arbitration confirmation, LaFarge Conseils et Etudes v. Kaiser Cement and Gypsum Corp., 791 F.2d 1334 (9th Cir.1986), was presided over by Judge Schwarzer.

2 On December 11, 1985, Frank Lench was convicted of two counts of obstruction of justice in United States v. Frank P. Lench in the N.D.Cal., No. 85-613. Kaiser cites this conviction in support of its claims of fraud in the arbitration and bid rigging.

Kaiser alleged that Foley violated Sec. 1 of the Sherman Act, 15 U.S.C. Sec. 1 in that Foley:

(a) agreed to allocate among themselves electrical construction projects, including the project at Kaiser's Permanente cement plant;

(b) agreed to fix the prices at which electrical construction projects, including Kaiser's Permanente cement plant, were bid, and

(c) agreed to submit noncompetitive, collusive, complimentary, and rigged bids, or to refrain from bidding, for electrical construction projects, including the project at Kaiser's Permanente cement plant.

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