McGoffin v. Sun Oil Co.
| Decision Date | 24 June 1976 |
| Docket Number | No. 75-1365,75-1365 |
| Citation | 539 F.2d 1245 |
| Parties | 1976-1 Trade Cases 60,906 Loyola H. McGOFFIN, Individually and on behalf of each and all other persons similarly situated who are presently or who were during the last four years operators of DX Service Stations in the 18 State marketing area, Appellant, v. SUN OIL COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James E. Frasier, Tulsa, Okl., for appellant.
John J. Runzer, Philadelphia, Pa. (Jon A. Baughman, Pepper, Hamilton & Scheetz, Philadelphia, Pa., and Robert M. Dubbs, St. Davids, Pa., with him on the brief), for appellee.
Before LEWIS, Chief Judge, and SETH and BARRETT, Circuit Judges.
This is an antitrust action in which the plaintiff alleged causes of action under the Sherman Act, the Robinson-Patman Act, and the Oklahoma Price Discrimination Act. Only the state action was finally submitted to the jury which found for the defendant.
The appellant asserts error in the rulings of the trial court on motions for partial summary judgment as to several causes of action, and on the scope of discovery which was permitted.
When this action was commenced, appellant was the lessee of a DX service station in Muskogee, Oklahoma, situated on Highway 69. Another DX station, known as the Hilltop DX station, also located in Oklahoma on Highway 69, was approximately two miles north of appellant's station. Appellee Sun had contracted to provide gasoline to both appellant and to Hilltop. The contract between Sun and appellant was a "consignment" contract while the contract between Sun and Hilltop was a "jobber" contract. Appellee was, among other things, a distributor of gasoline in an eighteen-state area including Oklahoma. The complaint was directed to the relationship between the two stations as "customers" of Sun. It also was framed to assert a class action cause on behalf of all stations in a position comparable to the plaintiff's.
It was stipulated that from September 1967 through 1972, appellee provided gasoline to the Hilltop station at a price less than the price it charged to appellant. Appellant alleged that the price discrimination between the two stations violated section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a), and the price discrimination laws of the State of Oklahoma, Okl.Stat.Ann., Title 79, § 2; that the agreement between Sun Oil and Hilltop violated section 1 of the Sherman Act, 15 U.S.C. § 1; and that there were brokerage payments to Hilltop and discriminatory services and facilities or payments in lieu thereof furnished to Hilltop, in violation of sections 2(c), 2(d) and 2(e) of the Robinson-Patman Act, 15 U.S.C. §§ 13(c), (d), (e). The section 2(c), (d) and (e) violations or the disposition by the trial court of causes based thereon did not reach the trial stage and are not in issue on this appeal.
Sun Oil moved to dismiss the claims under the Robinson-Patman Act because there were no purchases by appellant "in commerce" as required by the statute. The motion was supported by affidavits submitted by Sun personnel stating that the gasoline in question was delivered to both stations directly from Sun's West Tulsa, Oklahoma, refinery. The motion was denied by Judge Langley to permit appellant to have an opportunity for discovery.
Appellant thereafter served forty-seven interrogatories on appellee. Appellee refused to answer thirteen of them. Appellant was also dissatisfied with the deposition of several employees of appellee. He filed a motion to compel discovery. The motion later, and after a partial summary judgment, was denied by Judge Langley on grounds that the requested discovery did not relate to the specific incident of price discrimination between appellant and Hilltop and was therefore not relevant to the case.
Appellee answered the complaint and moved for partial summary judgment, referring only to claims under section 2(a) of the Robinson-Patman Act. The motion was again grounded on the showing that the price discrimination did not relate to purchases which were in interstate commerce. The aforementioned showing was by affidavits submitted in support of the motion. Appellant submitted no counter-affidavits, and relied on the pleadings. Judge Langley granted partial summary judgment as to the section 2(a) claims.
Some three months later, appellant moved to amend his complaint on the ground that he had discovered new and relevant facts. The proposed amended complaint deleted all references to the Hilltop station and instead alleged that appellant competed with "all persons selling gasoline." Judge Langley denied the motion on grounds that "in essence, the plaintiff seeks by way of amended complaint to reopen for further consideration matters which have heretofore been determined by entry of partial summary judgment."
Upon the death of Judge Langley, the case was assigned to Judge Daugherty, and a pretrial order was filed. The order recited that appellant had abandoned his class action claims.
In the meantime, appellant had served a second set of interrogatories on appellee. Appellee objected to sixteen of the seventeen questions. Appellant again deposed several of appellee's employees.
Appellee then moved for summary judgment on appellant's claims arising under sections 2(c), 2(d), and 2(e) of the Robinson-Patman Act and section 1 of the Sherman Act. On the basis of discovery, Judge Morris, who presided at trial, granted summary judgment on the remaining claims of the Robinson-Patman Act. As indicated above, appellant does not question that ruling.
A three-day jury trial was had on appellant's claims under the state price discrimination statute and on the Sherman Act. At the close of appellant's case, the trial court granted appellee's motion for a directed verdict on the Sherman Act claim. The case was submitted to the jury on the question of violation of the state antidiscrimination statute. The jury returned a verdict for appellee.
A fair reading of the complaint leads to the conclusion that the only competition by a particular station selling Sun gasoline was that of the Hilltop station. This is the only one specifically named. Allegations that other stations were in a situation similar to plaintiff were made in reference to the class action cause. The asserted competition was thus limited to these two stations, and price discrimination by defendant in its sales to the two of them was alleged. The Robinson-Patman section 2(a) cause of action was thus narrowly framed.
The limited scope of the complaint on the Robinson-Patman section 2(a) cause invited the motion to dismiss by defendant which was initially denied. The trial court however permitted further discovery by plaintiff, within the allegations of the complaint, and apparently to further develop the jurisdictional issue. This discovery was pursued by the plaintiff but apparently he could not improve his position, and the trial court granted summary judgment on the section 2(a) cause.
We find no objection to the use of summary judgment in these circumstances. See Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 95 S.Ct. 392, 42 L.Ed.2d 378. The affidavits of defendant-appellee were not countered by the plaintiff as to the origin of the gasoline and sales to the two stations, and he here seeks to rely on the pleadings. There then remained no fact issues as to the section 2(a) cause. The gasoline sold to the plaintiff and the Hilltop station was the product of defendant's Tulsa refinery; the complaint asserted that these were the two purchasers from defendant in competition with each other. Thus a secondary line injury case was so framed.
It would not seem necessary to further discuss the construction of the provisions of ...
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