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JOSEPH CICCONE & SONS v. EASTERN INDUS.

April 7, 1982

JOSEPH CICCONE & SONS, INC., Plaintiff,
v.
EASTERN INDUSTRIES, INC., Stabler Industries, Inc., Donald B. Stabler and Stabler Construction Company, Defendants



The opinion of the court was delivered by: TROUTMAN

PROCEEDINGS

Now, this is a case in which the jurisdiction of this Court is invoked pursuant to Section 16 of the Clayton Act, 15 U.S.C. 26 and 28 U.S.C. 1331 and 1337, in which the plaintiff, a producer of blacktop and aggregates, that is, stones used in road construction, complains that a series of recent transactions by the defendants, Stabler Companies, Inc., Donald B. Stabler and Stabler Construction Company, all hereinafter referred to collectively sometimes as Stabler, violates Sections 1 and 2 of the Sherman Act, 15 U.S.C. Sections 1 and 2 and Section 7 of the Clayton Act, 15 U.S.C. 18. Defendant or defendants, moving for summary judgment, assert a variety of defenses to this action. We shall address them seriatim.

 First, Stabler argues that plaintiff lacks standing to bring this action in that plaintiff has not sustained any direct injury as a result of defendant's conduct. In support of this theory, defendant inveighs against plaintiff's alleged failure to to substantiate its injuries. In doing so, we think defendant misconceives the burden which Federal Rule of Civil Procedure 56 imposes upon it at this early stage of the proceedings. Rule 56 imposes the initial burden upon the movant to "foreclose the possibility" that genuine issues for trial exist. We here cite Adickes v. Kress, 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). Only then must the party resisting the motion come forward with evidence sufficient to create a genuine issue of material fact. Here we believe that the defendant has failed to show, as an initial matter only, that it is entitled to judgment as a matter of law.

 Furthermore, the cases relied upon by the defendant do not support its contention at this early stage of the proceedings where plaintiff must show actual damage to its business in order to assert standing. For example, in Hutchinson v. American Oil Co., 221 F. Supp. 728 (E.D.Pa.1963), it was decided on a motion for preliminary injunction. In such cases, plaintiffs must show a substantial likelihood of success on the merits. See Fed.R.Civ.P. 65. In the case at bar, defendant must make a greater showing. It must show that it is entitled, by reason of its motion, to judgment as a matter of law at this early stage. See Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981).

 Moreover, defendants' reliance upon Credit Bureau Reports, Inc. v. Retail Credit Co., 476 F.2d 989, 992 (5th Cir. 1973), is we believe at this time misplaced. There the Court discussed standing in the context of the plaintiff's burden of showing the degree of harm which it suffered. However, there the burden was discussed in a post-trial setting, after the Court had the full opportunity to view all the evidence and determine the degree of harm, if any, which accrued to the plaintiff.

 In Merit Motors, Inc. v. Chrysler Corp., 187 U.S. App. D.C. 11, 569 F.2d 666, 671 (D.C.Cir.1977), defendant submitted uncontradicted affidavits which foreclosed genuine issues of material fact. The plaintiff there failed to rebut them. In fact, as it was there stated, the plaintiff only submitted "speculations and hypotheses." See page 672. In such circumstances, we concede that summary judgment is clearly appropriate. See Wire Mesh Products, Inc. v. Wire Belting Assn., 520 F. Supp. 1004, 1006 (E.D.Pa.1981.)

 Upon oral argument this morning in support of its motion for summary judgment, defendants rely upon plaintiff's deposition testimony that he "didn't know," whether or not he was injured by defendants' conduct. From this the defendants argue that plaintiff cannot be heard to complain of any injuries which he suffered at the defendants' hands. However, plaintiff's deposition contains more specifically the following question and answer:

 
Q "Has your company suffered any dollar injuries?
 
A Possibly. I don't know if Keystone told Eastern about prices. I don't know. I mean, I don't know if ______ is a fair price."

 Later, in response to counsel's question regarding the allegations in the complaint of a price squeeze, the plaintiff stated:

 
"I would have to admit that that was written by my attorney and I'm not exactly sure what he meant."

 Neither of these excerpts, in our opinion, support or compel the entry of summary judgment for plaintiff's inability to specify the harm which he or it purportedly suffered at the defendants' hands.

 As to the plaintiff's inability to define the harm which he or it suffered, plaintiff admitted only that he doesn't know how he was harmed but that he believes that he was harmed. This lack of specific knowledge regarding his injury is not surprising, I guess, given the fact that this case promises to be a complex trial "where motive and intent will play leading roles and proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot." Says the Court in Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S. Ct. 486, 491, 7 L. Ed. 2d 458 (1962).

 Moreover, plaintiff's apparent complete reliance upon counsel's expertise in drafting the complaint is not fatal to the case since clients in complex cases are not required to understand the various factual and legal components of their cases. To graft such a requirement onto the federal rules of evidence would sanction a return to the days of "old procedural booby traps which common-law pleaders could set to prevent unsophisticated litigants from ever having their ...


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