Monument Bowl, Inc. v. Northern Cal. Bowling Prop. Ass'n

• Decision Date: 06 September 1961
• Docket Number: 39818.,No. 39944,39944
• Citation: 197 F. Supp. 208
• Parties: MONUMENT BOWL, INC., a California corporation, Plaintiff, v. NORTHERN CALIFORNIA BOWLING PROPRIETORS' ASSOCIATION, a corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of California

197 F. Supp. 208

MONUMENT BOWL, INC., a California corporation, Plaintiff, v. NORTHERN CALIFORNIA BOWLING PROPRIETORS' ASSOCIATION, a corporation, et al., Defendants.

Nos. 39944, 39818.

United States District Court N. D. California, S. D.

September 6, 1961.

Joseph L. Alioto, San Francisco, Cal., Thomas L. Bocci, So. San Francisco, Cal., G. Joseph Bertain, Jr., San Francisco, Cal., for plaintiff.

Harold C. Faulkner, of Faulkner, Sheehan & Wiseman, San Francisco, Cal., for defendants East Bay Bowling Proprietors' Assn., Albany Recreation, Inc., Berkeley Bowl, Tagss, Inc., Hayward Amusement Properties, Midway Bowl, Inc., Rosarie A. Duval, dba College Bowl, Raleigh W. Moore, dba Piedmont Avenue Lanes, Kenneth Prentice, dba Uptown Bowl.

Richard H. Wels, Gen. Counsel, New York City, Irving S. Rosenblatt, Jr., and Robert K. Barber, San Francisco, Cal., for defendant Bowling Proprietors Assn. of America.

J. Joseph Sullivan, San Francisco, Cal., for defendants John H. Swanson d. b. a. Mission Bowl and Westlake Bowl.

Doyle & Clecak, by Wm. P. Clecak, San Francisco, Cal., for defendants Northern California Bowling Proprietors Assn., The Santa Clara Valley Bowling Proprietors' Assn., San Francisco Bowling Proprietors' Assn., The Peninsula Bowling Proprietors' Assn.

Gavin, McNab, Schmulowitz, Sommer & Wyman, San Francisco, Cal., for defendant Cherry Chase Amusement Co.

Philip S. Ehrlich and Irving Rovens, San Francisco, Cal., for defendants Bowling Enterprises, Inc., Sports Center Corp., Kent-Ray, Inc., Bowlarium, Inc., Brentwood Bowl, Cambrian Bowl, Inc., Cibelog, Inc., Bridgeman Enterprises, Inc., Modesto Bowl, Inc., Stevens Creek Bowl, Inc., Indian Bowl, Inc., Frank Debarbrie and Carl Debarbrie d. b. a. San Carlos Bowl, Downtown Bowl, Inc., Phillip Sunseri and Salvatore Lima, d. b. a. Santa Clara Bowl, Vedro Corp., McHenry Bowl, Inc.

HARRIS, District Judge.

Plaintiff, proprietor of Bayshore Bowl, a bowling enterprise in South San Francisco, has filed an action against owners and proprietors of similar establishments in Northern California Bay Area, five trade associations in the bowling industry and a national trade association, charging them with a violation of section one of the Sherman Act, 15 U.S.C.A. § 1.

A summary of the complaint discloses that plaintiff is aggrieved at his alleged loss of patronage to defendants who have attracted bowlers to their lanes by means of tournaments conducted by defendant associations and limited to bowlers who patronize defendant establishments. Plaintiff charges that defendants establish minimum prices for use of their facilities and that they have boycotted his business (since his patrons are ineligible to compete in tournaments conducted by members of defendant associations).

With respect to interstate commerce, the complaint asserts that some of the bowling equipment comes from out of state and that such flow will be diminished by reason of plaintiff's loss of business because of his reduction in number of customers.

When an analysis of the complaint is completed, it discloses that the charging parts center around and pertain exclusively to intrastate commerce. Plaintiff's business caters to the public in the use of purely local bowling, restaurant and bar facilities. Competitors are also local and engaged in intrastate commerce. Their means of attracting customers through tournaments do not give rise to anti-trust violations. Plaintiff does not charge that he is excluded from membership in the associations (which operated under his presidency at one time), nor does he contend that participation in bowling constitutes a professional activity.

The charge of price fixing among the named defendants pertains to an intrastate matter covering operators in a limited, local area while the assertion of boycott refers simply to the fact that plaintiff's customers are not eligible to compete in defendants' tournaments. Such barrier to participation may be overcome by action on plaintiff's part. He may rejoin defendant associations at any time.

In substance, plaintiff alleges that defendants conduct tournaments for bowlers who limit their patronage to defendants' lanes. Such limitation is without discrimination and does not restrict trade but constitutes an effort to attract more customers. An intrastate association established for such a purpose is authorized by California Business and Professions Code, § 16725. Diversion of customers, as charged in the complaint, does not in itself give rise to an action under the Sherman Act. When plaintiff charges a conspiracy aimed at him, through his loss of bowlers, he does not allege that defendants' conduct has had a substantial effect on the market of bowling pins, balls, bags and shoes—the articles which are involved in interstate commerce.

Plaintiff's position in brief relies upon cases which deal with the actual flow of commerce. Thus, Las Vegas Merchant Plumbers Ass'n v. United States, 9 Cir., 210 F.2d 732, dealt with a conspiracy among plumbing contractors to obstruct the flow of plumbing and heating supplies in interstate commerce by eliminating competition among plumbing contractors in the sale, distribution and installation of such supplies. Defendants served as a conduit for a regular, continuous and uninterrupted flow of the product which would reach the consumer.

Thus, also, in United States v. Employing Plasterers' Association, 347 U.S. 186, 74 S.Ct. 452, 98 L.Ed. 618, and Mandeville Island Farms v. American Crystal Sugar, 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328. In the former case, defendants were charged with a conspiracy to restrain trade among the plastering contractors whose materials flowed in interstate commerce in substantial quantities. In Mandeville Farms, refiners engaged in a price fixing monopoly among themselves whereby their product, destined for interstate shipment, was controlled as to its price schedule.

In the case at bar, there is a flow of bowling equipment to establishments in Northern California but such flow stops before the consumer enters the picture. Yet it is the consumer, the bowler and his patronage, with whom we are concerned and whose patronage gives rise to the relevant market. A charge dealing with loss of customers, in the manner set forth above, does not pertain to a violation of Section 1 of the Sherman Act. Rather, at most, it deals with local restraint which affects local commerce.

It is not enough to allege that plaintiff's orders for equipment will decline by reason of defendants' competition which takes away a percentage of bowling customers. Such allegation is too remote from the flow of interstate commerce to bring into application plaintiff's authorities. Rather, the following cases are controlling: Ruddy Brook Clothes v. British & Foreign Marine Insurance, 7 Cir., 195 F.2d 86; Brenner v. Texas Co., D.C., 140 F.Supp. 240 (refusal to sell gasoline to plaintiff, an Alameda operator); Shotkin v. General Electric Co., 10 Cir., 171 F.2d 236 (Denver business, with infinitesimal...