Morrison v. Nissan Co., Ltd.

• Decision Date: 25 June 1979
• Docket Number: No. 78-1384,78-1384
• Citation: 601 F.2d 139
• Parties: 1979-2 Trade Cases 62,724 Alan B. MORRISON, Appellant, v. NISSAN MOTOR CO., LTD., Nissan Motor Corporation in U. S. A., S. & R. Inc., d/b/a VOB Datsun Sales, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 139

601 F.2d 139

1979-2 Trade Cases 62,724

Alan B. MORRISON, Appellant, v. NISSAN MOTOR CO., LTD., Nissan Motor Corporation in U. S A., S. & R. Inc., d/b/a VOB Datsun Sales, Appellees.

No. 78-1384.

United States Court of Appeals Fourth Circuit.

Argued Feb. 5, 1979.

Decided June 25, 1979.

William B. Schultz, Washington, D. C., for appellant.

Nolan E. Clark (Timothy S. Hardy, Kirkland & Ellis, Washington, D. C., on brief), for appellees.

Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This is an antitrust case. ¹ The defendants are Nissan Motor Co., Ltd., a Japanese corporation, Nissan Motor Corporation, a California corporation, a subsidiary of Nissan Motor Co., Ltd., and VOB Datsun, an automobile dealer in Rockville, Maryland. ² Nissan Motor Co., Ltd. is the manufacturer and Nissan Motor Corporation is the distributor in the United States of the Datsun automobile (the two are hereafter referred to collectively as Nissan). VOB Datsun (described in the complaint as VOB Auto Sales) is a franchised dealer of Datsun cars. The plaintiff is the owner of a Datsun car which he has often had repaired at VOB Datsun's repair department. His claim of an antitrust violation relates to the charges made him for these repairs. It is his contention that these charges were made in conformity with a schedule of time charges prescribed in a Datsun Flat Rate Manual distributed by Nissan to be followed by its franchised dealers in their charges for any repairs, warranty or non-warranty, on a Datsun car. This practice constituted, under plaintiff's contention, a violation of the antitrust laws, for which he seeks damages individually, and as a class representative, an injunction against further use of the allegedly illegal schedule. ³

By way of answer to the complaint, the defendant Nissan admitted the distribution of the Datsun Flat Rate Schedule or Manual, as alleged by the plaintiff. It alleged that, so far as the Manual fixed any mandatory time schedules for work, such schedules related only to warranty work, for which Nissan was Solely responsible. This implied that the schedules were intended to be merely advisory for non-warranty repairs such as those performed for the plaintiff, payment for which the plaintiff was Solely responsible. In short, Nissan contended that the Manual set up mandatory time charges for warranty work, but was purely advisory, for the convenience of the dealers, so far as non-warranty work was concerned. It denied specifically that it had ever either singly or in concert with its franchised dealers established any mandatory time schedule to be used by such dealers in their charges for non-warranty repairs. It, as well as Datsun, accordingly denied any violation of the Sherman Act.

After joinder of issue, the parties proceeded to engage in an exchange of interrogatories and conducted some discovery depositions. Following the receipt by the court of answers to most of the interrogatories ⁴ and depositions, Nissan and Datsun moved for summary judgments, supporting their motions both with the record as it then existed and with a number of affidavits. The legal basis for their motions was that there was no genuine issue of fact in the case and that, giving full effect to such undisputed facts, it was clear as a matter of law that there had been no violation of the Sherman Antitrust Act by any defendant. The district court granted the motions and dismissed the action. This appeal by the plaintiff challenges the grant of summary judgment. ⁵

Summary judgment under Rule 56, Fed.R.Civ.P. should be granted only where it is perfectly clear that there is no dispute about either the facts of the controversy or the inferences to be drawn from such facts. United States v. Diebold, Inc. (1962) 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176; Fli-Back Co., Inc. v. Philadelphia Mfrs. Mut. Ins. Co. (4th Cir. 1974)502 F.2d 214, 218; Stevens v. Howard D. Johnson Co. (4th Cir. 1950) 181 F.2d 390, 394; Handi Inv. Co. v. Mobile Oil Corp. (9th Cir. 1977) 550 F.2d 543, 546-47. Accordingly, even though there may be no dispute about the basic facts, still summary judgment will be inappropriate if the parties disagree on the inferences which may reasonably be drawn from those undisputed facts. Winters v. Highlands Ins. Co. (5th Cir. 1978) 569 F.2d 297, 299; Exnicious v. United States (10th Cir. 1977) 563 F.2d 418, 423-24; Wessinger v. Southern Ry. Co., Inc. (D.S.C.1977) 438 F.Supp. 1256, 1259. And when the disposition of a case turns on a determination of intent, courts must be especially cautious in granting summary judgment, since the resolution of that issue depends so much on the credibility of the witnesses, which can best be determined by the trier of facts after observation of the demeanor of the witnesses during direct and cross-examination. Denny v. Seaboard Lacquer, Inc. (4th Cir. 1973) 487 F.2d 485, 491; Schmidt v. McKay (2d Cir. 1977)555 F.2d 30, 37; Mutual Fund Investors v. Putnam Management Co. (9th Cir. 1977) 553 F.2d 620, 624; Croley v. Matson Navigation Company (5th Cir. 1970) 434 F.2d 73, 77, Petition for rehearing denied 439 F.2d 788 (1971). ⁶ This is particularly so where the issue of intent relates to an ambiguous contract or document, "for the intent of the parties to an ambiguous contract is a question of fact which cannot properly be resolved on motions for summary judgment." Cram v. Sun Insurance Office, Ltd. (4th Cir. 1967) 375 F.2d 670, 674.

Since in antitrust cases "motive and intent play leading roles," these rules take on added importance in that context. See Poller v. Columbia Broadcasting (1962) 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458. This, however, is not to suggest that Rule 56 is to be "read out of antitrust cases" or that every person who files an antitrust case is entitled to "Get to a jury on the basis of the allegations of (his) complaint(s), coupled with the hope that something can be developed at trial in the way of evidence to support those allegations, * * *." First Nat. Bank v. Cities Service (1968) 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (emphasis added). But where the record generates a genuine dispute on the facts or on the inferences to be drawn from those facts particularly where a critical issue in the case may be the construction of an ambiguous contract or document relative to intent summary judgment is not warranted. We conclude that the record herein, viewed in the light most favorable to the plaintiff, does present a genuine dispute over the relevant facts and over the inferences to be reasonably drawn from such undisputed relevant facts as there are in the record. We accordingly reverse the judgment below.

The critical fact in the case, which provides largely the linchpin for plaintiff's action, is the Flat Rate Manual. It is the source of the schedule of time charges which the plaintiff urges represents an illegal pricing mechanism. It was distributed to all its franchised dealers by Nissan and was in their possession admittedly as a guideline for charges to be made. It did set forth specific time charges for all repair work listed in the Manual. The repair work listed included both warranty work, payment for which Nissan was responsible, and non-warranty work, payment for which the customer himself was responsible. It at no point made any distinction between warranty and non-warranty repairs. In fact, the district court commented that the plaintiff had stated "probably correctly, that 'in fact, only a small percentage of the operations included in the Datsun Flat Rate Manual would ordinarily be in the scope of the warranty.' " So far there is no disagreement.

The disagreement of the parties relates to the intention of Nissan and the dealers in the use of the Manual. It is the position of the defendants and it is the position which was adopted by the district court in reaching its decision that the evidence presented in support of the motion for summary judgment established beyond any dispute that the Manual was issued as a Unilateral act, intended to be merely advisory on time charges to be made by the dealers on non-warranty repairs, and that this was the uniform manner in which the Manual was used by the dealers for non-warranty repairs. As such, they contended that United States v. Colgate & Co. (1919) 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, establishes that such action is not within the reach of the Sherman Act.

Without conceding that Colgate remains good law, ⁷ the plaintiff disputes the factual predicate for defendants' reliance on that authority. He begins by disagreeing with the defendants' premise that the Manual as an instrument for fixing standardized repair charges by Datsun dealers was Nissan's unilateral product. He argues, contrariwise, that the Manual was developed and maintained with due consideration by Nissan of suggestions and recommendations from the dealers themselves. The plaintiff relied for this position on certain undisputed facts in the record. From the outset, Nissan invited criticisms and suggested changes from its dealers in the time charges fixed in the Manual as a basis for repair charges. It even included in the Manual distributed to all the dealers a form to be used for this purpose. As a result of this invitation, Nissan received from its dealers "hundreds" of proposed changes. ⁸ All of these were carefully evaluated by Nissan and changes in time charges for both warranty and non-warranty work were probably made as a consequence. ⁹ These changes were included in bulletins distributed to the dealers or in revised editions of the Manual itself. From this admitted procedure, it could be inferred that there was concert in the use, maintenance, and revisions of the Manual and its prescribed time charges and it could be properly argued, on this record so far that the Manual and its time schedules were the consensual product of Nissan and the dealers.

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