Rutledge v. Electric Hose & Rubber Co.
| Decision Date | 30 January 1975 |
| Docket Number | 71--2841,Nos. 71--2840,s. 71--2840 |
| Citation | 511 F.2d 668 |
| Parties | 1975-1 Trade Cases 60,151 M. D. RUTLEDGE et al., Appellants, v. ELECTRIC HOSE & RUBBER COMPANY et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joel R. Bennett (argued), Palos Verdes, Cal., for appellants.
Patrick Lynch, (argued), Frank R. Johnston, Los Angeles, Cal. (argued), John F. McClatchey, Cleveland, Ohio (argued), Gibson, Dunn & Crutcher, John J. Hanson, Don J. Belcher, Newlin, Tackabury & Johnston, Frank R. Johnston, O'Melveny & Myers, Homer I. Mitchell, Patrick Lynch, Los Angeles, Cal., Arthur, Dry, Kalish, Taylor & Wood, Walter Barthold, New York City, Mitchell, Silberberg & Knupp, Robert L. Winslow, Los Angeles, Cal., Domke, Marcoux, Allen & Beaman, John H. Schomer, Jackson, Mich., Robert J. Burdett, Chicago, Ill., Bruce M. Gleason, Los Angeles, Cal., Winston & Strawn, Earl A. Jinkinson, John W. Stack, Chicago, Ill., Thompson, Hine and Flory, John F. McClatchey, Cleveland, Ohio, Cantey, Hanger, Gooch, Cravens & Munn, Cecil F. Munn, Edward L. Kemble, Fort Worth, Tex., McCutchen, Black, Verleger & Shea, Phillip K. Verleger, Los Angeles, Cal., and Jones, Day, Cockley & Reavis, George H. Rudolph, Victor DeMarco, Cleveland, Ohio, for appellees.
Before GOODWIN and WALLACE, Circuit Judges and EAST, Senior District Judge. *
THE CASE
This treble damage antitrust action was filed on April 29, 1969. The cause ultimately came on for trial before the District Court sitting without a jury on February 25, 1971 and reached final judgment on June 2, 1971.
Appellants, M. D. Rutledge, doing business as Rubber Hose Supply Company and Industrial Hose and Rubber Company, and Mechanicals, Inc., a corporation, owned and controlled by Rutledge, appeal from an order of the District Court entered on April 22, 1971, granting the appellees' motion for dismissal pursuant to Rule 41(b) (Fed.R.Civ.P.) and the final judgment in favor of all of the appellees entered on June 2, 1971. We affirm.
The products involved in this case are hydraulic hose assemblies, which consist of hydraulic hose and hydraulic hose couplings. Hydraulic hose is simply a reinforced flexible hose, the primary purpose of which is to carry fluids under relatively high pressures, and have been for many years manufactured and sold by companies generally known as 'hose companies.' A hydraulic hose assembly consists of a length of the hydraulic hose with a coupling or fitting attached at each end to make it useful and has been designed and manufactured by specialty companies generally known as 'couplers.'
Rutledge is a coupler. Five of the appellees are hose companies and seven are couplers.
This appeal is the latest chapter in a story that goes back over 12 years to April, 1962, when a Federal Grand Jury commenced criminal investigations of companies in the hydraulic hose assembly industry. Following approximately three years of investigation by three Grand Juries, two separate indictments were returned in 1965, one of which charged six hose companies with price fixing. That proceeding ended with pleas of nolo contendere. The other indictment charged the seven coupler appellees and a number of individuals with conspiring in antitrust actions. Following three years of proceedings, that criminal cause succumbed to motions for acquittal and dismissal. United States v. Aeroquip Corporation, 284 F.Supp. 114 (E.D.Mich.1968) (Detroit suit).
Some of the appellees herein were not party to those proceedings.
The record shows that Rutledge failed to cooperate with his counsel's efforts to arrive at a subscribed agreed pretrial order. Following Rutledge's refusal to join and after notice and hearing, the District Court on January 5, 1971 settled and entered a pre-trial order setting forth the claims of Rutledge as follows:
(1) Alleged conspiracy in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1;
(2) Alleged discriminatory sales in violation of Sections 2(a) and 2(d) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a) and (d).
(3) Alleged conduct on the part of the coupler appellees in violation of Section 2(f) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(f).
There are numerous assignments of error; however, we are satisfied that a discussion of the following seven assignments is sufficient for an appropriate disposition of this appeal:
and to refuse 'to grant a continuance (of trial) for purposes of discovery'?
'5. (Which we paraphrase as follows: Was it reversible error for the District Court to deny appellants their constitutional right to a jury trial under Rule 38 (Fed.R.Civ.P.)?
b. Is Local Rule 13 invalid and unreasonable because it is inconsistent with Rule 38(b)?
d. Did the court abuse its discretion in declining to determine that the issues in the case may be tried to a jury under Rule 39(b) (Fed.R.Civ.P.)?)'
We find no abuse of judicial discretion on the part of the District Court in any other aspect of the pretrial or trial proceedings, and conclude all other assignments of error to be without merit.
Assignment of Error No. 1:
The appellees moved the District Court pursuant to Rule 23 for an order determining that the action could not be maintained as a class action, asserting therein that under the circumstances of the case, the class device was not superior to other available methods within the meaning of Rule 23(b)(3) and that Rutledge was not an adequate class representative within the meaning of Rule 23(a)(4). The District Court granted the motion.
It is now recognized that the failure of any one of Rule 23's requirements destroys the alleged class action. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 561 (2d Cir. 1968).
In deciding whether to allow a class action, a primary determination to be made is whether the class action is superior to, and not just as good as, other available methods for handing the controversy, and such a determination lies in an area where the trial court's discretion is paramount. City of New York v. International Pipe & Ceramics Corp., 44 F.R.D. 584, 587 (S.D.N.Y. 1968), app. dismissed 410 F.2d 295 (2d Cir. 1969); Buford v. American Finance Company, 333 F.Supp. 1243, 1250 (N.D.Ga.1971); Alameda Oil Co. v. Ideal Basic Industries, Inc., 326 F.Supp. 98, 105 (D.Colo.1971); cf. Amendments to Rules of Civil Procedure, Advisory Committee's Notes, 39 F.R.D. 69, 103 (1966).
Also, 'as a result of the sweeping changes in Rule 23, a court must now carefully scrutinize the adequacy of representation in all class actions.' Eisen v. Carlisle & Jacquelin, supra 391 F.2d at 562.
We conclude that the District Court's order disallowing the class action was correct and its reasons therefor were sound. We find no abuse of judicial discretion in the entry of the order. See Shields v. Valley National Bank of Arizona, 56 F.R.D. 448 (D.Ariz.1971), and Interpace Corporation v. City of Philadelphia, 438 F.2d 401, 404 (3d Cir. 1971).
Assignment of Error No. 2:
On April 13, 1970, the District Court, following notice and hearing, limited and fixed the time for the completion of Rutledge's discovery at July 13, 1970, 15 months after the action was filed. The District Court's findings of fact Nos. 51 and 52 reveal the situation which confronted the District Court, and we are satisfied that the record fully supports the findings. We find no abuse of judicial discretion in limiting the time for Rutledge's discovery. Fulton v. Coppco, Inc., 407 F.2d 611, 613 (10th Cir. 1969), and MacKay v. American Potash & Chemical Co., 268 F.2d 512, 517 (9th Cir. 1959).
Rutledge complains that the last answer of the appellees was not filed until June 11, 1970. Dilatoriness on the part of one party, if any, is no excuse for clear-cut, prolonged dilatory activity on the part of a moving party. The function of a plaintiff's discovery is to secure evidence in support of his claims. For an even more severe sanction against a dilatory plaintiff, see California Molasses Co. v. C. Brewer & Co., 479 F.2d 60 (9th Cir. 1973).
A related assignment of error, based on the District Court's refusal on January 6, 1971 to grant a continuance of the trial date of the following January 19 for the purpose of permitting Rutledge to continue its discovery, is frivolous. The only ground asserted for the continuance was to change lawyers. We find no abuse of judicial discretion in that refusal. Cf. Thompson v. Fleming, 402 F.2d 266 (5th Cir. 1968); see Grunewald v. Missouri Pacific Railroad Company, 331 F.2d 983, 987 (8th Cir. 1964).
Assignment of Error No. 5.b.:
Rule 38(a) generally provides that the right of trial by jury shall be preserved to the...
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