Palazzo v. Gulf Oil Corp.
| Decision Date | 05 July 1985 |
| Docket Number | No. 83-3219,83-3219 |
| Citation | 764 F.2d 1381 |
| Parties | 1985-2 Trade Cases 66,679 Frank PALAZZO, Plaintiff-Appellant, v. GULF OIL CORPORATION, a Pennsylvania Corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Herbert Schwartz, Gainesville, Fla., for plaintiff-appellant.
Harry Kemker, Keith E. Rounsaville, Tampa, Fla., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before RONEY, and TJOFLAT, Circuit Judges, and BROWN *, Senior Circuit Judge.
This case involves the antitrust claims of three parties: Frank Palazzo, Tina Palazzo, and Advanced Sales Corp. (Advanced). Plaintiffs Frank Palazzo and Tina Palazzo co-owned business property leased to Advanced, and were president and vice-president, respectfully, of Advanced when this suit was filed. Plaintiff Advanced is an independent, non-branded wholesale purchaser and retailer of gasoline.
In this appeal, Frank Palazzo, a layman proceeding pro se, seeks to assert the claims of both Advanced and Tina. He also asks us to recognize his right to recover damages in his individual capacity for anti-competitive activity allegedly directed at Advanced's business. After reviewing the record we conclude first that, due to the general rule requiring corporations to be represented by counsel, Frank may not represent the corporation in his pro se capacity. Second, we decide that the individual claims of Frank and Tina are not the type for which recovery is available under the applicable antitrust laws. We thus affirm the district court's Order of Dismissal and Entry of Summary Judgment.
In 1973, because of a shortage of gasoline, Congress enacted the Emergency Petroleum Allocation Act (EPAA), 15 U.S.C. Sec. 751, et seq. which regulated the sale of gasoline by refiners, such as defendant, Gulf Oil Corp. Regulations promulgated under the EPAA were designed to ensure that all customers of gasoline suppliers received a monthly volume of gasoline proportionate to the amounts they had received in 1972, before any shortages occurred.
As a relatively new retailer of gasoline, Advanced, which began operations in 1974, had no 1972 supplier. Thus, under applicable regulations, on March 7, 1974, the regional administrator of the Federal Energy Agency (FEA) designated defendant Gulf as the supplier for Advanced, with an initial base period volume of 1 million gallons per year. In April of 1974, apparently after objections filed with the FEA by Gulf and competitors of Advanced, this base period volume was reduced to 185,000 gallons per year. In August of 1974, however, this reduction order was stayed. In January, 1975, Advanced's supply volume was finally adjusted to 800,000 gallons per year.
Gulf proceeded to supply Advanced with gas as required by the FEA. Advanced, however, objected strenuously to the price at which the gas was supplied. Gulf charged Advanced the same dealer tank wagon price for gasoline as it charged its branded, Gulf retail dealers. Advanced argued that as a non-branded, independent retailer, it should receive a lower price for its gasoline, since it did not enjoy the benefits, such as credit cards and name-brand products, available to branded dealers. Gulf responded that the price being charged was appropriate under the applicable regulations, and that the regulations in fact prohibited Gulf from establishing a different price for Advanced than it had for other dealers in the area.
Over the next two years, Advanced repeatedly objected to the price at which Gulf supplied its gasoline. During this time, Advanced purchased some of its gasoline from Gulf, but also made recurrent purchases from other wholesalers on the "spot market." Unable to resolve its pricing problems with Gulf, Advanced requested a change of supplier. The FEA granted this request and on May 6, 1977, Gulf was relieved of its supply obligation to Advanced.
In December of 1977, Advanced made a written demand to Gulf for refund of the overcharges alleged to have resulted from Gulf's pricing policies. Gulf refused any refund and in March of 1978, the three plaintiffs, Frank Palazzo, Tina Palazzo and Advanced, filed their complaint against defendant. The complaint, as amended in July of 1978, included five counts, and alleged violations of the EPAA, the Economic Stabilization Act of 1970, the Sherman Act, the Clayton Act and the Robinson-Patman Act, and Florida state antitrust laws. The various counts sought recovery for damages to Advanced, as well as asserting claims on behalf of Frank and Tina individually.
A trial date was initially set for January of 1981. However, such a quick disposition was not to be in this case. In late 1980, the three plaintiffs moved for a continuance of trial in order that pending motions could be resolved. In February of 1981, trial was rescheduled for the first week of February 1982.
In April of 1981, the attorney representing Frank, Tina and Advanced moved for leave to withdraw as attorney of record on grounds that his retainer agreement only contemplated representation through the preliminary stages of the lawsuit, and that the intervening divorce of Frank and Tina had created a conflict of interest between them.
Without objection from defendants, the district court, on May 12, 1981, granted the motion, stating: "The plaintiffs shall have thirty (30) days ... to secure substitute counsel (or the individual plaintiffs may file and serve a notice of proceeding pro se )...." Thirty-one days later, Frank Palazzo filed a "Notice of Pro Se Appearance," and moved for permission to appear as "Counsel Pro Se for the Plaintiffs."
Discovery proceeded, and on December 22, 1981, defendant Gulf moved for summary judgment as to all counts. On March 16, 1982, the case was referred to a United States Magistrate for disposition of all pending motions, and for his report and recommendation. On March 29, 1982, the magistrate allowed plaintiffs 10 days to respond to defendant's motion for summary judgment. He also ruled that the court would not entertain any submissions on behalf of the corporate plaintiff Advanced except those by a licensed attorney. Nevertheless, on April 13, more than 10 days later, plaintiff Frank Palazzo responded on behalf of all plaintiffs, and also filed a "Motion to Recognize Frank Palazzo as Plaintiff in all Counts and Proceed Pro Se." In that motion, Frank stated that Tina's claims had been assigned to him by virtue of a property settlement agreement, and that, as the largest creditor and stockholder of Advanced, he was entitled to represent its claims as well.
On November 16, 1982, the magistrate issued his Report and Recommendation, in which he recommended (1) that the claims of Advanced in Counts I, II, III, and V be dismissed for failure to comply with Local Rule 2.03 requiring corporations to be represented by counsel; (2) that Tina Palazzo be dismissed as a party for failure to prosecute; and (3) that summary judgment be entered against Frank Palazzo in favor of Gulf on his claims in Counts IV and V.
On December 28, 1982, Frank Palazzo filed objections to the findings of the magistrate, and attached an affidavit stating that Advanced, the corporation, had transferred its claims to him and that he was therefore entitled to represent the corporate claims pro se. On January 31, 1983, however, the district court adopted the magistrate's recommendations, and entered the Order of Dismissal and Final Judgment from which this appeal has been taken.
On February 22, 1983, Frank Palazzo moved, pursuant to F.R.A.P. 4(a)(5), for an extension of time on behalf of all plaintiffs to appeal the district court's order. On February 24, 1983, the judge granted Frank Palazzo alone until March 18, 1983, to file a notice of appeal. The judge also stated, as to the other plaintiffs, "the plaintiff, Frank Palazzo, may not represent anyone other than himself." Notwithstanding this order, on March 3, 1983, Frank Palazzo, pro se, filed a notice of appeal on behalf of Advanced and Tina, as well as himself, to the Temporary Emergency Court of Appeals (TECA) from the district court's judgment on Counts I, II and IV, containing plaintiff's claims under the EPAA. 1 On March 18, 1983, he appealed the same judgment as to all counts to this court.
On September 9, 1983, TECA affirmed the district court's judgment as to Counts I, II and IV. As to the claims of Advanced in Counts I and II, and Tina in Count IV, the TECA agreed with the district court that their dismissal was proper. The court stated that, even assuming Frank could otherwise properly assert these claims, he had failed to do so within the 30 day limit set by the lower court in its order of May 12, 1981. The court also found no basis for Frank Palazzo's individual claims (in Count IV) for violations of the EPAA and the Economic Stabilization Act. The court observed that there was no support for the proposition that Frank, by virtue of his positions as officer, stockholder and creditor of Advanced, was entitled to recover in his individual capacity for alleged overcharges to the corporation.
On April 9, 1984, this court entered orders (1) dismissing the appeals of Tina Palazzo and Advanced for failure to timely file appellate briefs; (2) dismissing all claims of Frank Palazzo arising out of Counts I, II and IV (the claims based on the EPAA); and (3) granting Frank Palazzo leave to file a supplemental brief as to his right to prosecute the claims arising out of Counts III and V. Count III asserts a claim by Advanced for damages arising from alleged violations of the United States antitrust laws. Count V seeks recovery on behalf of Frank, Tina and Advanced for alleged violations of the Florida antitrust laws.
Frank Palazzo, proceeding pro se, has raised numerous issues on appeal. In our view, however, the only important questions concern whether Frank may proceed pro se on behalf...
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