Defendant manufacturer has moved for summary judgment, pursuant to Fed. R. Civ. P. 56(b), against plaintiff distributor, in this private, treble-damage antitrust action. In its original suit, plaintiff complains that after approximately thirty years of distributing defendant's beauty supplies to retailers and consumers, plaintiff has now been refused defendant's trade. In its complaint, plaintiff alleges that defendant has so acted on the ground that plaintiff has from time to time charged its customers a price lower than that which defendant recommended for resale.
In its answer to the complaint, defendant denies as "utterly false and untrue" the allegation that resale price maintenance figured among its motives in discontinuing plaintiff as one of its distributors. Rather, defendant counters, its reasons for ceasing to sell to plaintiff were based solely on the latter's unwillingness to follow defendant's instructions that certain of its products were to be sold in accordance with the instructions marked thereon, viz.: "for professional use only, not to be resold [to the non-expert public at large] ".
At this stage of the pleadings, defendant made its motion for summary judgment. Thereafter both plaintiff and defendant submitted opposing affidavits, as specifically required by amended Rule 56(e). Issue is therefore joined for the purposes of this motion.
Discussion of plaintiff-respondent's contentions in its complaint must be divided into two parts. We deal first with any cause of action which might be made out under the antitrust laws. We shall then focus upon the specific case made out by the respective parties on this motion by defendant-petitioner for summary judgment in its favor.
In its complaint, and again in its brief opposing the instant motion, respondent speaks of violations of simply "the Clayton and Robinson-Patman Acts." Respondent appears to seek the protection, more exactly, of the Clayton Anti-Trust Act §§ 1, 2 (as amended by the Robinson-Patman Act § 1), and 4, 15 U.S.C. §§ 12, 13, and 15.
Although respondent uses the language of the cases under Sherman Act § 1 (as amended by the Miller-Tydings Fair Trade Act), now 15 U.S.C. § 1,
by alleging a refusal to deal on the part of petitioner allegedly because of respondent's lack of cooperation toward resale price maintenance, Sherman Act § 1 avails respondent nothing, because no "contract, combination . . . or conspiracy" has been either pleaded or proved. Contrast Albrecht v. Herald Co., 390 U.S. 145, 19 L. Ed. 2d 998, 88 S. Ct. 869 (1968); United States v. Arnold, Schwinn & Co., 388 U.S. 365, 18 L. Ed. 2d 1249, 87 S. Ct. 1856 (1967); United States v. Parke, Davis & Co., 362 U.S. 29, 4 L. Ed. 2d 505, 80 S. Ct. 503 (1960); Frey & Son v. Cudahy Packing Co., 256 U.S. 208, 65 L. Ed. 892, 41 S. Ct. 451 (1921); Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S. 373, 55 L. Ed. 502, 31 S. Ct. 376 (1911).
Clayton Act § 2, 15 U.S.C. § 13, prohibits price discrimination. Unlike Sherman Act § 1, it does not require a "contract, combination . . . or conspiracy, in restraint of trade," but makes it unlawful, rather,
for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce . . . .
From the portion of Clayton Act § 2 here quoted, it will readily be seen that the discrimination decried presupposes unequal treatment between two otherwise equally situated customers, and that the section does not envisage the type of situation of which respondent complains in its treble-damage action.
In short, even if its pleadings were taken on their face, and even if petitioner had, as alleged, refused to deal unilaterally with respondent because the latter declined to maintain a resale price to petitioner's liking, without the added circumstance of a conspiracy of which petitioner were a part, or of a price discrimination practiced upon respondent to another's advantage, respondent has made out no cause of action cognizable under the federal antitrust laws. On this motion, however, there is an even more compelling reason why summary judgment must be granted petitioner.
As has often been pointed out, Rule 56(e) was amended in 1963 for the specific purpose of overcoming "some judicial authority, notably in the Third Circuit, . . . that affidavits could not cut through well-pleaded allegations," 6 J. Moore, Federal Practice P56.11, at 2162 (2d ed. 1966). The Third Circuit itself has recognized this, and has declared itself in accord with the amendment both in letter and in spirit. In this vein, Judge Freedman, quoting the Advisory Committee on Rules, wrote as follows:
'The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule . . . .'
This amendment must be made fully effective. Robin Constr. Co. v. United States, 345 F.2d 610, 615 (3d Cir. 1965). With this admonition in mind, we turn now to the pleadings and affidavits in the instant case.
Although, as mentioned above, respondent in its complaint charges that petitioner has refused to deal with it because respondent has occasionally charged its customers a price lower than that which petitioner recommended for resale, in respondent's affidavits submitted to show that "genuine issue as to any material fact" exists, for the purposes of Rule 56(c), the secretary of respondent corporation averred merely that petitioner would no longer sell to respondent products which it considered dangerous to the uninitiated consumers to whom respondent was reselling them.
Petitioner's affidavits, on the other hand, include a specific averment by the district sales manager for petitioner corporation that respondent's contention that petitioner attempted resale price maintenance "is factually and wholly incorrect." In such a posture, the pleadings and averments taken together appear to us to leave no "genuine issue as to any material fact" unresolved.
This is so, even keeping in mind the cautionary note expressed by the Supreme Court in Poller v. Columbia Broadcasting, 368 U.S. 464, 473, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962), that the court
must look at the record on summary judgment in the light most favorable to . . . the party opposing the motion . . . . We believe that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.