Major Mart, Inc. v. Mitchell Distrib. Co., Civil Action No. 3:13–CV–942–HTW–LRA.

Decision Date14 August 2014
Docket NumberCivil Action No. 3:13–CV–942–HTW–LRA.
Citation46 F.Supp.3d 639
CourtU.S. District Court — Southern District of Mississippi
PartiesMAJOR MART, INC., Plaintiff v. MITCHELL DISTRIBUTING COMPANY, INC. and Mitchell Beverage, LLC, Defendants.

April Reeves Freeman, Kaytie M. Pickett, Neville H. Boschert, Jones Walker, LLP, Jackson, MS, for Plaintiff.

Clarence Webster, III, Forman, Perry, Watkins, Krutz & Tardy, LLP, Erin D. Saltaformaggio, Michael J. Bentley, Stephen Lee Thomas, W. Wayne Drinkwater, Jr., Bradley Arant Boult Cummings LLP, Jackson, MS, Richard Benjamin McMurtray, William C. Hammack, Glover, Young, Hammack, Walton, & Simmons, PLLC, Meridian, MS, for Defendants.

ORDER

HENRY T. WINGATE, District Judge.

This case features a dispute between plaintiff Major Mart, Inc. (Major Mart), and defendants Mitchell Distributing Company, Inc. (Mitchell Distributing), and Mitchell Beverage, LLC (Mitchell Beverage) (collectively “Mitchell”). Major Mart owns and operates eleven convenience stores in northern Mississippi. Mitchell is an Anheuser–Busch distributor. The core dispute here is whether Mitchell engaged in conduct violative of federal and state antitrust laws, aimed at Major Mart, an accusation that Mitchell denies.

Before this court are nine motions: a Motion to Dismiss [docket no. 12], filed by Mitchell under the auspices of Rule 12(b)(6)1 of the Federal Rules of Civil Procedure ; a Motion for Summary Judgment [docket no. 86], filed by Mitchell pursuant to the authority of Rule 562 of the Federal Rules of Civil Procedure ; a Motion in Limine [docket no. 106], filed by Major Mart, to strike certain expert opinions of Greg Ellis and limit his expert testimony; a Motion in Limine [docket no. 107], filed by Major Mart, to strike certain expert opinions of William C. Myslinski and limit his expert testimony; a Motion in Limine [docket no. 108], filed by Major Mart, to strike certain expert opinions of Ralph J. Stephens and limit his expert testimony; a Motion for Summary Judgment [docket no. 113], filed by Mitchell Distributing as allowed by Rule 56 of the Federal Rules of Civil Procedure ; a Motion to Strike Supplemental Trial Report of David C. Sharp [docket no. 118], filed by Mitchell; a Motion to Strike Jimmy Brown as a Potential Trial Witness [docket no. 119], filed by Mitchell; and a Motion in Limine to Exclude All Documents and Testimony Relating to Settlement Discussions [docket no. 121], filed by Mitchell.

Having reviewed the motions and their supporting documents, the court grants in part and denies in part the Motion to Dismiss [docket no. 12]. The court grants the Motion to Dismiss only as to Counts V and VI of the complaint.

The court grants in part and denies in part the Motion for Summary Judgment [docket no. 86]. The court grants the motion only as to the Robinson–Patman Act claim. The court denies the motion as to the Sherman Act claim, the Mississippi antitrust claim, and the tortious interference claim. The court also denies the Motion for Summary Judgment [docket no. 113].

The court grants the Motion in Limine [docket no. 106] to exclude the expert opinion of Greg Ellis; denies the Motion in Limine [docket no. 107] to exclude the expert opinions of William C. Myslinski; denies the Motion in Limine [docket no. 108] to exclude the expert opinion of Ralph J. Stephens; denies the Motion to Strike the Supplemental Trial Report of David C. Sharp [docket no. 118]; grants the Motion to Strike Jimmy Brown as a Potential Trial Witness [docket no. 119], and grants the Motion in Limine to Exclude All Documents and Testimony Relating to Settlement Discussions [docket no. 121].

I. BACKGROUND

Major Mart, is a Mississippi corporation with its principal place of business in Starkville, Mississippi. Its president is Gregory Sharp (“Sharp”). Major Mart owns eleven “B–Quik” convenience stores in the following northeast Mississippi towns: West Point, Clay County; Columbus, Lowndes County; Starkville, Oktibbeha County; Saltillo, Lee County; Baldwyn, Lee County; and New Albany, Union County. Major Mart's B–Quik stores sell, inter alia, tobacco products, gasoline, and light wine and beer.

Mississippi has created a special format for distribution of light wine and beer. Each manufacturer must create sales territories within the state and name one licensed wholesaler to service that territory with the manufacturer's brand. Miss.Code Ann. § 27–71–349(1).3 The licensed wholesaler must sell the light wine or beer to retailers within the territory “without discrimination in service.” Miss.Code Ann. § 27–71–349(2).4

Mitchell Distributing is a Mississippi corporation with its principal place of business in Meridian, Mississippi. Mitchell Distributing is a beer distributor licensed by the State of Mississippi to sell Anheuser–Busch beer in the following Mississippi counties: Winston County, Neshoba County, Kemper County, Scott County, Newton County, Lauderdale County, and Clarke County.

Mitchell Beverage is a Mississippi limited liability company that has its principal place of business in Meridian, Mississippi. Mitchell Beverage is licensed by the State of Mississippi to sell Anheuser–Busch beer in Prentiss County, the southern part of Tishomingo County, Union County, Lee County, Itawamba County, Chickasaw County, Monroe County, Clay County, Lowndes County, Oktibbeha County, and Noxubee County.

Manny Mitchell (“Manny”) owns 30% of Mitchell Beverage. Manny Depo. at 15, docket no. 104, exh. 2. The remaining 70% is divided equally between two trusts held for the benefit of his son and daughter, Adam Mitchell (“Adam”)5 and Emily Mitchell Athanas. Id. Adam serves as the President of Mitchell Beverage and Mitchell Distributing.

Major Mart claims to have sold Anheuser–Busch products in its retail stores for over thirty-two years. Prior to November 2008, the Anheuser–Busch wholesaler for the territory in which Major Mart did business was Cash Distributing Company. Major Mart claims it had a good working relationship with Cash Distributing Company. In November 2008, Mitchell became the Anheuser–Busch wholesaler in Major Mart's territory.

In September 2010, Major Mart claims that about 70–75% of its light wine and beer sales were Anheuser–Busch products. Customers, says Major Mart, would come to the B–Quik stores to purchase beer and subsequently would purchase other products such as gasoline, tobacco, and grocery items. Major Mart says that customers often have preferred beer brands, and they will not stay to buy other items if their preferred beer brand is not in stock.

In September 2010, the relationship between Major Mart and Mitchell began to deteriorate. Major Mart says Mitchell sent five different “Every Day Low Price” (“EDLP”) sheets to Major Mart with differing prices. As a result of the confusing price sheets, Major Mart was unable to correctly price the Anheuser–Busch products and lost profit on its beer sales. Major Mart also asserts that Mitchell began overstocking the store with items that Major Mart did not request and charging prices different from prices charged at other stores. Mitchell, in contrast, claims that it gave accurate pricing information to Major Mart, but Major Mart ignored the updated pricing sheet and chose not to redo its pricing. Mitchell refused to compensate Major Mart for the alleged lost profits during this period.

As a result of the dispute with Mitchell, in late 2010 and early 2011, Major Mart made a business decision to provide additional display space to Mitchell's competitors, remove Anheuser–Busch displays and signs, and lower the prices on Mitchell's competitors' products. Although the cooler space allocation in five Major Mart stores remained the same, in the other stores Major Mart reduced the cooler space allocated to Anheuser–Busch products from approximately 55 percent to approximately 48 percent. As a result, Major Mart's sales of Coors and Miller beers increased.

In late September 2010, one of Major Mart's competitors sent an email to Mitchell, complaining that it was losing Coors and Miller business to Major Mart because of the pricing in the B–Quick stores. The competitor wanted to see if Mitchell could do anything about the situation. Mitchell claims that its members met to discuss the situation, but they ultimately chose to do nothing. Tony Carley Depo. at 65–69, docket no. 104, exh. 4. Major Mart's President, Sharp, however, claims he discovered that Mitchell's salesmen were entering the coolers and storeroom to inventory competitors' products. Sharp Depo. at 176–77,183–84, docket no. 104, exh. 1. As a consequence, in early November 2010, Major Mart informed Mitchell that Major Mart would conduct its own ordering and Mitchell's employees were not permitted in the storeroom. Id. 182–84.

Major Mart contends that Mitchell began retaliating against Major Mart. Major Mart claims that Mitchell was dissatisfied with the Anheuser–Busch shelf space in the B–Quik stores (approximately 50 percent) and wanted the shelving allocation to represent Anheuser–Busch products' market share (approximately 70 percent). Mitchell also wanted price parity with its competitors' products. Manny Depo. at 120, docket no. 104, exh. 2.

On April 11, 2011, Mitchell contacted Major Mart to inform it that Mitchell was changing its delivery days and cutting deliveries to most Major Mart stores to once per week. Major Mart asserts that Mitchell continued to provide multiple delivery days to Major Mart's competitors. Mitchell asserts that it made this change because of its twice annual evaluation of delivery routes. After evaluating the volume on the trucks, the number of stops the truck made, and the drive time, Mitchell determined that Major Mart was selling less Anheuser–Busch beer, and once-a-week deliveries would make more business sense for Mitchell.

On April 12, 2011, Major Mart's President, Sharp, emailed Mitchell complaining that once a week deliveries would fill up Major Mart's coolers and storerooms, leaving...

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  • Major Mart, Inc. v. Mitchell Distrib. Co.
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    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • August 14, 2014
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