Metro Ford Truck Sales, Inc. v. Ford Motor Co.
| Decision Date | 26 June 1998 |
| Docket Number | No. 97-11218,97-11218 |
| Parties | 1998-1 Trade Cases P 72,194, 41 Fed.R.Serv.3d 741, RICO Bus.Disp.Guide 9515 METRO FORD TRUCK SALES, INC., Plaintiff-Appellant-Appellee, v. FORD MOTOR COMPANY, Defendant Counter-Defendant/Third-Party Plaintiff-Appellee/Appellant, Duane KUPPER, Eric MAGNUS, Mike STECKLER, Defendants-Appellants, v. Daniel H. FOLEY, Counter Claimant/Third-Party Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James A. Pikl, Dallas, TX, for Ford Truck Sales, Inc.
John Mark Thomas, Ford Motor Company, Dearborn, MI, Kenneth Raymond Valka, Billy M. Donley, Baker & Hostetler, Houston, TX, for Ford Motor Co.
Appeals from the United States District Court for the Northern District of Texas.
Before POLITZ, Chief Judge, and REYNALDO G. GARZA and DENNIS, Circuit Judges.
Metro Ford Truck Sales, Inc. appeals an adverse summary judgment on its federal antitrust claims. 1 Ford Motor Company, Eric Magnus, Mike Steckler, and Duane Kupper appeal the remand of their third-party claim against Daniel H. Foley, Jr. under the Racketeer Influenced and Corrupt Organizations Act. 2 For the reasons assigned, we affirm.
Ford is engaged in the manufacture of various types of vehicles, including heavy, medium, and light duty trucks. At all pertinent times, Metro was a motor vehicle dealership licensed to sell and service Ford trucks, and Foley was the dealer-principal. The relationship between Ford and Metro The focus of this action is a pricing program implemented by Ford, known as Competitive Price Assistance. This program was used to reduce the wholesale price of a truck to authorized Ford medium and heavy duty truck dealers. During the 1990-94 period at issue, all Ford medium and heavy truck dealerships were eligible to receive, on every truck, a base level of CPA called "Sales Advantage." Sales Advantage CPA was obtained by calling Ford's CPA Hotline, and giving the operator basic information about the sale, including the customer's name, the vehicle specifications, and the vehicle options.
was governed by Ford Truck and Ford Heavy Duty Truck Sales and Service Agreements.
In situations where the sales advantage CPA was insufficient, further procedures permitted a dealer to request additional price reductions, known as "Appeal CPA." The appeal process was initiated when a dealer submitted a CPA appeal form by facsimile to Ford's CPA Central. To justify the need for an Appeal CPA, a dealer had to provide information about the competitive situation surrounding the particular transaction at stake. Ford then evaluated the appeal, along with any additional information it had about the customer, to ensure that all Ford dealers bidding the same customer received an equal CPA, and that all Ford dealers could meet the competition from other original equipment manufacturers. Ford thereafter advised the dealer about the amount of additional CPA, if any, that would be allowed.
Specialized CPA also existed for large volume purchasers. This CPA usually was at a predetermined amount and could be obtained simply by calling the CPA Hotline and providing the customer's name and commitment number. Because these customers attracted so much competition, and ordered such a large volume of trucks, the amount of CPA was made readily available, alleviating the need for the dealer to demonstrate individually a competitive situation or to initiate a CPA appeal.
In response to complaints by another dealer that Metro was obtaining more CPA on bids to the same customer, Ford conducted an audit of certain sales Metro made using the CPA program. Ford concluded that Metro had been applying for CPA in the name of one customer, while actually selling the trucks to someone else; thus receiving more CPA than that to which it was entitled. Metro conceded that it sometimes misrepresented customers when claiming CPA, but alleged that Ford representatives instructed it to claim CPA in the name of its large volume purchasers when the situation warranted CPA beyond Sales Advantage CPA. Ford employees, not surprisingly, denied that Metro was so instructed or that they had knowledge of Metro's practice prior to the audit. Accordingly, Ford determined to charge back the amount of CPA obtained by Metro on the misrepresented transactions, and to pursue termination of Metro's franchise agreements.
To prevent the threatened charge back or terminations, Metro filed the instant action in state court, seeking injunctive relief and asserting various state law claims against Ford and Ford employees Kupper, Magnus, and Steckler (hereinafter collectively referred to as "Ford"). Ford filed counterclaims against Metro and a third-party petition against Foley, alleging several causes of action under state law. Thereafter Metro filed an amended petition, which included a claim against Ford for price discrimination under the Texas Antitrust Act, and Foley filed a counterclaim against Ford for intentional infliction of emotional distress.
Ford removed the action to federal court on the basis that the Texas Antitrust Act does not prohibit price discrimination and, therefore, Metro's antitrust claim for price discrimination could arise, if at all, only under the federal Robinson-Patman Act, conferring federal question jurisdiction. The district court agreed with the basis for removal and denied Metro's motion to remand. Metro thereafter amended its complaint to assert specific claims for price discrimination under § 2(a) of the Robinson-Patman Act and for vertical price fixing under § 1 of the Sherman Act, and Ford amended its third-party complaint against Foley to include a RICO claim.
All parties subsequently moved for summary judgment. The district court granted Ford's motion for summary judgment on Metro's federal antitrust claims. Finding that state law predominated and a substantial overlap existed, the district court remanded the remaining state law claims, as well as the third-party RICO claim, to state court. Both Metro and Ford timely appealed.
Metro contends that the district court erred in (1) denying leave to designate experts and file expert reports beyond the scheduling order deadline; and (2) granting summary judgment in favor of Ford on its Sherman Act and Robinson-Patman Act claims. In its cross-appeal, Ford contends that the district court erred in remanding its third-party RICO claim, as well as the pendent state law claims.
Metro's first argument on appeal is that the district court erred in denying its motion for leave to designate experts and file expert reports out-of-time, or to recognize its supplemental disclosures. We review a trial court's decision to exclude expert witnesses as a means of enforcing a pretrial order under the abuse of discretion standard. 3 In so doing, we consider: "(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice." 4
As a preliminary matter, we note that it is only the ruling on one expert, Dr. Keith Leffler, that is at issue. Absent from Metro's trial motion and its argument on appeal, is sufficient justification for the late designation of this expert witness. Metro essentially complains that Ford failed to provide supplemental discovery. Although this case had been pending for well over two years, and the scheduling order deadlines had been extended previously, Metro did not timely raise this issue in the trial court.
Nonetheless, Metro contends that the mere one week delay in designating this expert was nominal and resulted in no prejudice, mandating the grant of its motion. Metro fails, however, to note the lack of an accompanying written report, as required by the scheduling order and Rule 26(a)(2)(B), which results, necessarily, in the conclusion that the expert designation deadline was not merely one week late as it contends. Instead, Metro urges this court to recognize the filing of Dr. Leffler's report as timely under the supplemental disclosure deadline some three months later. We decline to do so. The purpose of supplementary disclosures is just that--to supplement. Such disclosures are not intended to provide an extension of the expert designation and report production deadline. 5 We therefore hold that the district court did not abuse its discretion in refusing to modify the scheduling order and in enforcing the time deadlines. 6
In its remaining arguments on appeal, Metro contends that the district court erred in granting summary judgment in favor of Ford on its federal antitrust claims. We review a grant of summary judgment de novo. 7 Summary judgment is appropriate "if 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 and that the moving party is entitled to a judgment as a matter of law." 8
Metro contends that Ford's CPA program constitutes vertical price fixing in violation of the Sherman Act. The district court found the lack of evidence of an agreement fatal to Metro's Sherman Act claim. Metro contends that the district court erred in this regard because the existence of a contract or agreement is not required for a vertical price fixing claim. Metro maintains that Ford's independent and unilateral actions are sufficient to support its claim. We do not find these contentions persuasive.
Section 1 of the Sherman Act expressly requires that there be a "contract, combination ... or conspiracy" between the manufacturer and other distributors in order to establish a violation. 9 "Independent action is not proscribed." 10 Even where a single firm's restraints directly affect prices and have the same economic effect as concerted action might have, there can be no...
To continue reading
Request your trial
-
Physicians Healthsource, Inc. v. Allscripts Health Solutions, Inc.
...735, 742 n.6 (7th Cir. 1998) ("Disclosures must not be used as a means to extend a discovery deadline."); Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320 (5th Cir. 1998) ; Finwall v. City of Chicago, 239 F.R.D. 494, 502 (N.D. Ill. 2006) ; City of Grass Valley v. Newmont Mining ......
-
Cooper v. Wal-Mart Transp., LLC
...v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1000 (5th Cir.1998) (citation omitted); see also Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 324 (5th Cir.1998) (citation The fourth factor does not apply here because there has been no lapse by Cooper for which he must provi......
-
Rio Grande Royalty Co. Inc. v. Partners
...as concerted action might have affected them, there is no Section 1 liability without an agreement. See Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 325 (5th Cir.1998). Consequently, the only period for which Plaintiff might have plausibly stated a Section 1 claim is before......
-
Bluitt v. Houston Independent School Dist.
...to exercise jurisdiction over the remaining state law claim. See Cohill, 484 U.S. at 350, 108 S.Ct. 614; Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 328 (5th Cir.1998), cert. denied, 525 U.S. 1068, 119 S.Ct. 798, 142 L.Ed.2d 660 (1999); Buchanon v. City of Lancaster, No. C......
-
Table of Cases
...1982), 98 Metro Commc’ns Co. v. Ameritech Mobile Commc’ns, 984 F.2d 739 (6th Cir. 1993), 28 Metro Ford Truck Sales v. Ford Motor Co., 145 F.3d 320 (5th Cir. 1998), 50 Midwestern Mach. Co. v. Northwest Airlines, 392 F.3d 265 (8th Cir. 2004), 100 Minter-Weisman Co. v. Comm’r of Revenue, 520 N......
-
Pricing Issues
...Morris Inc., 107 F. Supp. 2d 210, 221 (S.D.N.Y. 2000)) (emphasis in original). 126. See, e.g. , Metro Ford Truck Sales v. Ford Motor Co., 145 F.3d 320, 326 (5th Cir. 1998); Shreve Equip. v. Clay Equip. Corp., 650 F.2d 101, 105 (6th Cir. 1981); FLM Collision Parts v. Ford Motor Co., 543 F.2d......
-
Table of Cases
...1987), 144 Metro Commc’ns Co. v. Ameritech Mobile Commc’ns, 984 F.2d 739 (6th Cir. 1993), 78, 81 Metro Ford Truck Sales v. Ford Motor Co., 145 F.3d 320 (5th Cir. 1998), 76 Midwestern Waffles v. Waffle House, Inc., 734 F.2d 705 (11th Cir. 1984), 104, 109, 133, 141, 146 Miles Distribs. v. Spe......
-
Antitrust Claims Arising Out Of Franchise Or Dealership Termination
...457 F.3d 484 (5th Cir. 2006) (affirming judgment for defendants after bench trial). 204. See Metro Ford Truck Sales v. Ford Motor Co., 145 F.3d 320, 325-26 (5th Cir. 1998) (affirming summary judgment for defendant on terminated dealer’s claim under Section 2(a) based on “functional availabi......