Spence v. SOUTHEASTERN ALASKA PILOTS'ASS'N

Decision Date30 March 1992
Docket NumberNo. J90-004 Civil.,J90-004 Civil.
Citation789 F. Supp. 1014
PartiesCaptain Michael C. SPENCE, Plaintiff, v. SOUTHEASTERN ALASKA PILOTS' ASSOCIATION, et al., Defendants.
CourtU.S. District Court — District of Alaska

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul L. Dillon, Dillon and Findley, Juneau, Alaska, for plaintiff.

C.L. Cloudy, Trevor N. Stephens, Ziegler, Cloudy King & Peterson, Ketchikan, Alaska, W.G. Ruddy, Kathryn Kolkhorst, Ruddy, Bradley & Kolkhorst, Juneau, Alaska, for defendants.

MEMORANDUM AND ORDER

VON DER HEYDT, District Judge.

I. INTRODUCTION.

This cause comes before the court on motion for summary judgment filed March 15, 1991 (Docket No. 81), by defendants Southeastern Alaska Pilots' Association, et al. ("SEAPA"); on cross-motion for summary judgment, filed June 21, 1991 (Docket No. 90), by plaintiff Michael Spence; on motion to strike cross-motion for summary judgment, filed July 12, 1991 (Docket No. 96), by defendants; on motion for request for judicial notice, filed September 3, 1991 (Docket No. 110), by plaintiff and on motion for request for judicial notice, filed March 11, 1992 (Docket No. 155), by defendants; and on motion to allow supplemental pleadings, filed November 18, 1991 (Docket No. 131), by plaintiff. The court heard oral argument on the summary judgment motions December 6, 1991 at Anchorage, Alaska. For the reasons stated below, the motions for summary judgment are granted in part, and denied in part; the motion to strike is denied; the requests for judicial notice are granted; and the motion to allow supplemental pleadings is granted. This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1.

II. BACKGROUND.

The court relies on the background statement included in its order of December 11, 1990, 789 F.Supp. 1007 (D.Alaska 1990) (Docket No. 63) in addition to the background information below.

Plaintiff filed his complaint April 25, 1990. Claims one through four allege violations of state and federal anti-trust statutes asserting illegal restraint of trade and monopoly as violations of the Sherman Act, 15 U.S.C. §§ 1 and 2, and violations of the Clayton Act, 15 U.S.C. §§ 15 and 26. Claims five through eight are state law claims for breach of fiduciary duty; for an antitrust violation pursuant to the Alaska Monopolies and Restraint of Trade Act, Alaska Statute ("A.S.") 45.50.562 et seq.; for punitive damages for restraint of trade violation, for breach of contract, for defamation and for violation of his constitutional rights; for violation of state constitutional rights to pursue livelihood and due process pursuant to Article I, § 1 of the Alaska Constitution; and for torts of defamation, libel and slander.

In July, 1991 the Governor of Alaska signed into law SCS CSHB 194 (L & C) ("Pilot Bill"). The Pilot Bill revises the Alaska Marine Pilot Act in several respects. Pilot associations must now be open to any licensed pilot. A pilot must belong to a pilot association. The pilot board must approve a pilot association's bylaws and rules, and the pilot association must be recognized by the Alaska Board of Marine Pilots. Training programs for pilots and deputy pilots are to be established, and pilot organizations must operate or participate in such a program.

Defendants filed a motion for mootness arguing that because of the revisions made in the Pilot Bill and because of plaintiff's resignation from SEAPA, all of plaintiff's claims were moot. At oral argument and in opposition to defendants' motion for mootness, plaintiff argued that the case is not moot because it is possible for the court to grant relief to plaintiff. Because the court agreed that issues remained, the motion for mootness was denied.

Plaintiff argued in his opposition to the motion for mootness that a controversy exists surrounding the meeting of SEAPA where bylaws were changed regarding investment fund withdrawals. The controversy includes whether the meeting was properly noticed, whether the proxies were valid and whether plaintiff timely submitted his resignation prior to the vote. Plaintiff claims the court can grant him relief by concluding that the special meeting called by SEAPA was improper, that he timely resigned, that SEAPA return his investment funds and that the decision of SEAPA regarding his suspension be removed from his record. Included in plaintiff's argument regarding the investment issue is the claim that defendants' decision to change its policy on investment funds is directly linked to the amount defendants claim it would have been damaged by withholding plaintiff's suspension.

Defendants had argued, in part, that plaintiff's resignation from SEAPA and the recent revision of the Pilot Bill settled the issues in this case. The court finds that questions of fact exist on whether the special meeting held by SEAPA was properly noticed, whether the proxies were valid and whether plaintiff resigned prior to or subsequent to the decision to change investment fund policy. Further, the court finds that in order to determine whether defendants' actions suspending plaintiff were proper, and were not a result of a restraint of trade or monopoly, the antitrust issues need to be addressed. Because the court finds, as discussed below, that questions of fact remain on plaintiff's antitrust and other claims, there remains a "case or controversy."

III. DISCUSSION.
A. Supplemental Pleadings.

Plaintiff requests the court to accept two supplemental affidavits in support of his summary judgment motion. Plaintiff submits that certain events occurred subsequent to the filing of his summary judgment motion which are related to the issues on said motion. Plaintiff contends that defendants filed misleading, forged and improper exhibits, and that the witness testimony of defense counsel requires disqualification of Mr. C.L. Cloudy and the firm of Ziegler, Cloudy, King and Peterson pursuant to Alaska Bar Code of Professional Responsibility, DR 5-102. Defendants oppose the motion, arguing that the exhibits filed were not misleading, forged or improper.

The court does not agree with plaintiff's allegations that the exhibits filed by defendants were forged, misleading or improper. However, in order to make that determination, the court had to rely on the supplemental pleadings filed by plaintiff and the documents filed by defendants in opposing plaintiff's motion. Therefore, the court grants plaintiff's motion to allow supplemental pleadings. Further, the court took into consideration the supplemental pleadings and supporting arguments when it considered the motions for summary judgment.

Plaintiff also seeks the disqualification of defendants' counsel and counsel's law firm pursuant to Alaska Bar Code of Professional Responsibility DR 5-102. It is not clear in plaintiff's motion which subsection of that rule he seeks defense counsel's disqualification. Plaintiff asserts in his motion that witness testimony of defense counsel requires disqualification. It is not until plaintiff files his reply that he further explains his reference to "witness testimony" of defense counsel.

Plaintiff maintains in his reply brief that counsel for defense has been on plaintiff's witness list since October, 1990. Plaintiff argues that defense counsel claims to have had conclusive proof that plaintiff collaborated with Captain Bennett and his attorney, and that this allegation was a key part in defendants' successful effort to prejudice the membership against plaintiff. In addition, plaintiff claims that defense counsel was instrumental in the preparation and filing of charges against plaintiff. Further, plaintiff contends that defense counsel acted as prosecuting attorney, ruled on objections and drafted the hearing panel's decision regarding plaintiff's hearing with SEAPA. Plaintiff concludes that defense counsel was an integral player in the charges brought against plaintiff, in the hearing process, and in the resulting hearing board decision.

Because defendants did not have the opportunity to address the arguments made in plaintiff's reply brief, the court cannot find on the record before it that disqualification of Mr. Cloudy is appropriate. To the extent that plaintiff seeks Mr. Cloudy's disqualification, that motion is denied without prejudice.

B. Motion to Strike.

Defendants filed a motion to strike, pursuant to Fed.R.Civ.P. 12(f) and 16(e) and (f), plaintiff's cross-motion for summary judgment. Defendants argue that plaintiff filed his cross-motion after the date set for filing. Plaintiff asserts that, pursuant to Fed.R.Civ.P. 56(a), after service of a motion for summary judgment, the adverse party may move for summary judgment in the party's favor, and further that such a rule should take precedence over the court's scheduling order.

In the interests of justice, the court's concern is determining motions before it on the merits. The court agrees that a more appropriate course of action that plaintiff may have taken in the above situation would have been to file an appropriate motion requesting leave to file his cross-motion. However, upon review of plaintiff's brief cross-motion, the defendants' very brief opposition and the plaintiff's reply, it can hardly be said that plaintiff "had the last shot." No new arguments were presented in the plaintiff's cross-motion; the arguments made focused on those already presented in defendants' summary judgment motion. Therefore, in the present case, defendants' motion to strike plaintiff's cross-motion for summary judgment is denied.

C. Motion/Cross-Motion for Summary Judgment.

The court notes at the outset that neither party complied with Local General Rule 5(F). That rule requires the party opposing a summary judgment motion to submit an accompanying statement of genuine issues which "clearly, concisely, completely and candidly" state the "contested issues of material facts which must be tried." Plaintiff did not submit an accompanying statement. Pl...

To continue reading

Request your trial
5 cases
  • Appraisers Coalition v. Appraisal Institute, 93 C 913.
    • United States
    • U.S. District Court — Northern District of Illinois
    • 15 Febrero 1994
    ...that CBS could conspire with one of its affiliates to eliminate another affiliate from competition); Spence v. Southeastern Alaska Pilots' Ass'n, 789 F.Supp. 1014 (D.Alaska 1992) (holding that an association and its members could conspire when the members competed against each other); Unite......
  • Brown v. Presbyterian Healthcare Services, s. 95-2293
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 29 Noviembre 1996
    ...and compensatory damages), cert. denied, 326 U.S. 734, 66 S.Ct. 42, 90 L.Ed. 437 (1945)). See also Spence v. Southeastern Alaska Pilots' Ass'n, 789 F.Supp. 1014, 1029 (D.Alaska 1992) ("[p]unitive damages are not available on federal anti-trust Notwithstanding the patent impropriety of allow......
  • Suulutaaq Inc. v. Williams
    • United States
    • U.S. District Court — District of Alaska
    • 1 Diciembre 2010
    ...44 at 19 (similar). FN94. State v. Carpenter, 171 P.3d 41, 51 (Alaska 2007) (citation omitted). FN95. Spence v. Southeastern Alaska Pilots' Assoc., 789 F.Supp. 1014, 1028 (D.Alaska 1992) (citing Green v. Northern Publ'g Co., 655 P.2d 736, 740 (Alaska 1982)); see also Fairbanks Publ'g Co. v.......
  • Taylor v. Philip Morris Inc.
    • United States
    • Maine Superior Court
    • 29 Mayo 2001
    ... ... Spence v. Southeastern Alaska Pilots' ... Association , 789 F.Supp. 1014, ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Alaska. Practice Text
    • United States
    • ABA Antitrust Library State Antitrust Practice and Statutes (FIFTH). Volume I
    • 9 Diciembre 2014
    ...755, 761 (Alaska 2000)); Alakayak v. B.C. Packers, Ltd., 48 P.3d 432, 448 (Alaska 2002); see also Spence v. Se. Alaska Pilots’ Ass’n, 789 F. Supp. 1014, 1020 n.1 (D. Alaska 1992) (citing KOS ex rel. Sourdough Freight Lines v. Alyeska Pipeline Serv. Co . , 676 P.2d 1069 (Alaska 1983)) (“The ......
  • The stifling of competition by the antitrust laws: the irony of the health care industry.
    • United States
    • Journal of Law and Health Vol. 15 No. 2, June 2000
    • 22 Junio 2000
    ...to insurers established an unreasonable restraint of trade prohibited by the Sherman Act). (31) Spence v. S.E. Alaska Pilots' Ass'n, 789 F. Supp. 1014 (D. Alaska 1992). See also Mowery v. Standard Oil Co. of Ohio, 463 F. Supp. 762 ON.D. Ohio 1976), aff'd 590 F.2d 335 (6th Cir. 1978); Unibra......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT