Maier-Schule GMC, Inc. v. General Motors Corp., CIV-87-1514S.

• Decision Date: 31 December 1991
• Docket Number: No. CIV-87-1514S.,CIV-87-1514S.
• Citation: 780 F. Supp. 984
• Parties: MAIER-SCHULE GMC, INC., Plaintiff, v. GENERAL MOTORS CORPORATION (GMC TRUCK & BUS GROUP), Volvo White Truck Corporation, Volvo GM Heavy Truck Corporation, Buffalo Truck Sales & Service, Inc., Taige Berggren, Kenneth Kaczmarek, Richard B. Gurley, Nicholas Bodnar and Thomas B. Bowen, Defendants.
• Court: U.S. District Court — Western District of New York

780 F. Supp. 984

MAIER-SCHULE GMC, INC., Plaintiff, v. GENERAL MOTORS CORPORATION (GMC TRUCK & BUS GROUP), Volvo White Truck Corporation, Volvo GM Heavy Truck Corporation, Buffalo Truck Sales & Service, Inc., Taige Berggren, Kenneth Kaczmarek, Richard B. Gurley, Nicholas Bodnar and Thomas B. Bowen, Defendants.

No. CIV-87-1514S.

United States District Court, W.D. New York.

December 31, 1991.

F. James Kane, Jr., Damon and Morey, Buffalo, N.Y., for Maier-Schule GMC, Inc.

Thomas S. Wiswall, Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N.Y., and Daniel L. Goldberg, Bingham Dana & Gould, Boston, Mass., for General Motors Corp.

Deborah H. Karalunas, Bond Schoeneck & King, Syracuse, N.Y., for Volvo White Truck Corp., Volvo GM Heavy Truck Corp., Buffalo Truck Sales & Service, Inc., Taige Berggren, Kenneth Kaczmarek, Richard B. Gurley, Nicholas Bodnar and Thomas B. Bowen.

DECISION AND ORDER

SKRETNY, District Judge.

INTRODUCTION

Now before this Court is the plaintiff Maier Schule's ("plaintiff") motion for partial summary judgment against defendants General Motors Corporation ("GM") and Volvo GM Heavy Truck Corporation ("VGM") (collectively referred to as "the defendants") as to the Robinson-Patman Act claims contained in Count One of the Complaint ("Count One"). Also before this Court are the cross-motions for partial summary judgment of GM and VGM, similarly as to those portions of Count One.¹

This Decision and Order supersedes a previous Decision and Order filed with the Clerk of the Court on August 1, 1991.

This Court has jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1331 and through exercise of its pendent jurisdiction.²

Before it went out of business in 1990, plaintiff operated a GM truck dealership in Cheektowaga, New York; plaintiff was an authorized dealer for Class 8 GM Brigadier model ("Brigadier") trucks. Prior to and during 1987, plaintiff was one of four dealers which supplied Brigadier trucks to Ryder Automotive Carrier Division ("Ryder"). In the several years before 1987, plaintiff's sales of Brigadier trucks to Ryder constituted a significant portion of plaintiff's business. However, in 1987 plaintiff sold no Brigadier trucks to Ryder.

In Count One of the Complaint seeking declaratory and injunctive relief and damages, the plaintiff alleges that the defendants violated § 2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13 ("§ 13").³ Plaintiff alleges that beginning in 1987, GM implemented and enforced a discriminatory fleet discount policy with respect to dealer sales of Brigadier trucks to Ryder. Plaintiff further alleges that because GM denied plaintiff the same discount offered to plaintiff's competitor dealers, plaintiff lost Ryder as a customer and consequently went out of business.

With respect to VGM, plaintiff alleges that VGM is a joint venture between GM and Volvo-White Truck Corporation created to continue the manufacture and market of Brigadier trucks in place of GM through an exclusive dealership after December 31, 1987. Plaintiff claims that before manufacturing Brigadier trucks, VGM competed with Schule as a dealer of Brigadier trucks manufactured by GM, and as a dealer, helped engineer and receive discounts not made available to the plaintiff. In any event, plaintiff alleges that VGM participated in enforcing the alleged discriminatory discounts in 1987 and beyond.

In support of their cross-motions, the defendants advance several arguments. Initially, the defendants argue that this Court must dismiss the Robinson-Patman Act portions of Count One because plaintiff cannot show that it purchased any trucks from the defendants during the time of the alleged price discrimination and, therefore, that the plaintiff has failed to establish a prima facie Robinson-Patman Act violation. The defendants also argue that the plaintiff has failed to establish other elements of its prima facie Robinson-Patman Act claim and that, nonetheless, they administered no discriminatory discounts. Finally, GM moves to strike the affidavits of Nelson Schule and F. James Kane, Esq.

In support of its motion, the plaintiff has submitted the affidavit of Nelson Schule ("Schule"); the affidavit of James Kane, Esq. with exhibits ("Kane"); a legal memorandum ("Plaintiff Memo."); a reply memorandum in response to GM ("Reply to GM"); a reply memorandum in response to VGM ("Reply to VGM"); a letter brief dated January 9, 1991 ("Plaintiff Letter Brief"); and statements of material fact.

In support of its cross-motion, GM has submitted a legal memorandum ("GM Memo."); a letter brief dated February 7, 1991 ("GM Letter Brief"); the affidavit of Thomas Wiswall, Esq. with exhibits ("Wiswall"); the affidavit of Lawrence E. Bradford ("Bradford"); the affidavit of James R. Rossow ("Rossow"); several other evidentiary affidavits; and statements of material fact.

In support of its cross-motion, VGM has submitted a legal memorandum ("VGM Memo."); a first supplemental legal memorandum ("VGM 1st Supp. Memo"); a second supplemental legal memorandum ("VGM 2d Supp. Memo."); the affidavit of Deborah Karalunas, Esq. with an exhibit; and statements of material fact.

This Court has considered all these submissions and oral argument held on February 26, 1991.

Conclusion: For the reasons set forth below, this Court finds that the plaintiff fails to establish a prima facie Robinson-Patman Act violation and therefore grants the defendants' cross-motions for partial summary judgment as to the Robinson-Patman Act claims contained in Count One.

SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate where "... 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." The burden is upon the moving party to demonstrate the absence of a material factual dispute. Fed.R.Civ.P. 56(e). Once that burden is met, the non-moving party "... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). This Court must draw all reasonable inferences in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). However, courts should not be reluctant to grant summary judgment in appropriate cases since "one of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims," Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), thereby permitting courts to avoid "... protracted, expensive and harassing trials." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).

Applying this standard, this Court concludes that there exists no genuine issue of material fact as to the defendants' Robinson-Patman Act liability under Count One.

FACTS

The following material facts are not in dispute.

Before 1987, plaintiff was one of four GM dealers which supplied Brigadier trucks to Ryder. (Rossow, ¶ 2). The other three dealers were George Byers Sons, Inc. ("Byers"), Wink Chevrolet ("Wink") and General GMC ("General"). According to an Addendum to the Dealer Sales and Service Agreement between the plaintiff and GM ("the Addendum"), GM granted plaintiff a non-exclusive right to buy certain named models of GM heavy duty trucks. (See, Memorandum and Order denying plaintiff's motion for preliminary injunction, Hon. John T. Elfvin, filed with the Clerk of the Court January 5, 1988.) From 1982 to 1986, the plaintiff supplied 251 Brigadier trucks to Ryder. (Schule ¶ 11). Sales of Brigadier trucks to Ryder constituted a significant portion of plaintiff's Class 8 heavy truck sales. (Schule, ¶¶ 7, 11).

Competitive Equalization ("CE") is a discount from invoice prices on the sale of heavy trucks such as the Brigadier.⁴ This discount is realized by the end user or ultimate purchaser of the truck, such as Ryder. CE was designed to make GM heavy trucks, such as the Brigadier, price competitive with other makes of heavy trucks. (Bradford, ¶ 2).

Prior to 1987, GM did not make CE available for Brigadier truck sales to car hauler companies such as Ryder. (Kane, Exh. A; Bradford ¶ 4; Rossow ¶ 4). In May 1987, GM began offering CE on Brigadier trucks ultimately supplied to Ryder. (Bradford, ¶ 5). Schule's three competitor dealers, Wink, Byers and General, supplied Brigadier trucks to Ryder in 1987. (Schule, ¶ 19; Rossow ¶ 2). During 1987 plaintiff supplied no Brigadier trucks to Ryder. (Schule ¶ 15; Rossow, ¶ 2).

On December 31, 1987, GM terminated the Addendum. (Schule, ¶ 17).

DISCUSSION

A. GM's Motion To Strike Certain Affidavits

Initially, GM moves to strike the affidavits of Nelson Schule and F. James Kane, Esq. arguing that these affidavits fail to comply with Fed.R.Civ.P. 56(e) because, according to GM, they are not based on personal knowledge. Briefly, this Court views the Kane affidavit only as a "road map" with respect to the documentary evidence attached to it and therefore finds no personal knowledge deficiency. Moreover, as the Chief Executive Officer of the plaintiff, Schule has personal knowledge of the plaintiff's operations. For purposes of these motions, this Court need not and does not rely on Schule's testimony regarding the details of Ryder's relationship with the plaintiff beyond the fact of whether any sales were made by the plaintiff to Ryder at all.

Therefore, this Court denies GM's motion to strike.

B. Plaintiff's Prima Facie Robinson-Patman Act Case

Per Count One of the Complaint, the plaintiff contends that where GM and VGM provided financial assistance to plaintiff's three competitor dealers via the CE discount system but denied plaintiff the same discount, a violation of Robinson-Patman has occurred. (Complaint, ¶ 28; Plaintiff Memo., p. 7).⁵

To establish its claim under § 13, the plaintiff must meet certain threshold elements which...