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NORTHEAST WOMEN'S CTR., INC. v. MCMONAGLE

May 8, 1987

NORTHEAST WOMEN'S CENTER, INC.
v.
MICHAEL McMONAGLE, DENNIS SADLER, DEBORAH BAKER, THOMAS HERLIHY, JOHN STANTON, ANNE KNORR, ROBERT MORAN, JOSEPH P. WALL, ROLAND MARKUM, HOWARD WALTON, HENRY TENAGLIO, STEPHANIE MORELLO, ANNEMARIE BREEN, ELLEN JONES, SUSAN SILCOX, PAUL C. ARMES, WALTER G. GIES, JOHN J. O'BRIEN, PATRICIA WALTON, KATHY LONG, HELEN GAYDOS, DONNA ANDRACAVAGE, JUAN GUERRA, LINDA HEARN, JOHN CONNOR, MARGARET CAPONI, MARY BRYNE, LINDA CORBETT, THOMAS McILHENNY, PASQUALE VARALLO, and PATRICIA McNAMARA


Kelly, J.


The opinion of the court was delivered by: KELLY

KELLY, J.

 Under Federal Rule of Civil Procedure 50(a), the trial court must direct the verdict if, under the applicable law, there can be only one reasonable conclusion as to which party should prevail. See Brady v. Southern R. Co., 320 U.S. 476, 479-80, 88 L. Ed. 239, 64 S. Ct. 232 (1943). The mere fact that a scintilla of evidence supports the plaintiff's case will not defeat a motion for directed verdict. See Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448, 20 L. Ed. 867 (1872). Instead, the court must ask "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). In making this inquiry, the court must leave credibility determinations, the weighing of the evidence, and the drawing of proper inferences to the jury; the plaintiff's evidence is taken as true and all justifiable inferences are drawn in the plaintiff's favor. Id. at 2513.

 Due to the number of the claims in this case and the disjointed presentation of the evidence, the court decided it was necessary to conduct an extended hearing on the defendants' motions. Following four hours of argument and a complete review of the evidence, the court concludes that the defendants' motions will be granted in part and denied in part. The specific rulings and their explanations follow.

 I. SHERMAN ANTITRUST ACT CLAIMS

 As set forth in the complaint, the plaintiff contends that the defendants conspired to restrain trade and commerce in violation of the Sherman Antitrust Act, 15 U.S.C. § 1. Amended Complaint at para. 84. Specifically, the plaintiff argues that the manifest intent of the defendants' protest activities was to destroy the Center's abortion procedure business. *fn2" Accordingly, the plaintiff asserts that it is entitled to treble damages pursuant to 15 U.S.C. § 15.

 Section 1 of the Sherman Act declares that "every . . . conspiracy, in restraint of trade or commerce among the several States . . . is . . . illegal . . . ." 15 U.S.C. § 1 (1982). Although, if interpreted literally, Section 1 would prohibit any agreement in restraint of trade, the courts have recognized that only those agreements which unreasonably restrain trade or commerce violate the Sherman Act. *fn3" See Weiss v. York Hosp., 745 F.2d 786, 817 (3d Cir. 1984), cert. denied, 470 U.S. 1060, 105 S. Ct. 1777, 84 L. Ed. 2d 836 (1985).

 A year and a half ago, in finding that the plaintiff's antitrust count survived a motion to dismiss, the court acknowledged that the dissimilarity between the plaintiff's antitrust theory and those claims ordinarily held violative of the Sherman Act was disturbing. Northeast Women's Center, Inc. v. McMonagle, 624 F. Supp. 736, slip op. at 12 (E.D. Pa. 1985). Although not conclusive on the question of whether or not the Sherman Act was applicable, "this essential dissimilarity . . . [did] constitute a warning against treating the defendants' conduct as though it amounted to a common-law trade restraint." Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136-37, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961). Consequently, the court expressly cautioned the plaintiff that "proof of injury to the plaintiff's business will be deemed insufficient absent further proof that such injury amounted to an unreasonable restraint on trade." Northeast Women's Center, Inc. v. McMonagle, No. 85-4845, slip op. at 7 (E.D. Pa. Feb. 12, 1987). The plaintiff's case now over, it is clear to the court that its warning has gone unheeded. The plaintiff has rested its claim for an antitrust recovery entirely on proof that the defendants seek to destroy its abortion business. As this court forewarned the plaintiff on February 12, 1987, *fn4" this proof alone is not proof enough.

 The goal of the federal antitrust laws generally is the enhancement of competition. Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81 (3d Cir. 1977), cert. denied, 436 U.S. 913, 56 L. Ed. 2d 413, 98 S. Ct. 2253 (1978). The goal of Section 1 specifically is the prevention of any diminution of competition in the marketing of goods or services. Kalmanovitz v. G. Heileman Brewing Co., 769 F.2d 152, 156 (3d Cir. 1985). Although an individual business has standing to sue under the Sherman Act for injuries it sustained to its own business, the antitrust laws were not enacted simply to protect such discreet, individual business interests. "The antitrust laws were enacted for the protection of competition, not competitors" Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1977) (emphasis added) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 8 L. Ed. 2d 510, 82 S. Ct. 1502 (1962)).

 Accordingly, an antitrust plaintiff is required to prove more than just its business' injury. To recover under Section 1, a plaintiff must prove that the defendants' conspiracy produced adverse, anti-competitive effects within relevant product and geographic markets. *fn5" Tunis Bros. Co. v. Ford Motor Co., 763 F.2d 1482, 1489 (3d Cir. 1985), vacated on other grounds, 475 U.S. 1105, 106 S. Ct. 1509, 89 L. Ed. 2d 909 (1986); Martin B. Glauser Dodge Co., 570 F.2d at 81. Accord Seaboard Supply Co. v. Congoleum Corp., 770 F.2d 367, 375 (3d Cir. 1985). The plaintiff has the burden of demonstrating that the defendants' conspiracy, in some substantial way, "either did or could affect interstate commerce by controlling market prices, imposing undue limitations on competitive conditions, or unreasonably restricting competitive opportunity." Sitkin Smelting & Refining Co. v. FMC Corp., 575 F.2d 440, 447 (3d Cir.), cert. denied, 439 U.S. 866, 58 L. Ed. 2d 176, 99 S. Ct. 191 (1978). Accord Apex Hosiery Co. v. Leader, 310 U.S. 469, 493, n.15, 84 L. Ed. 1311, 60 S. Ct. 982 (1940) (Sherman Act designed to prevent restraints of trade which have significant effect on business competition).

 Competition within a particular industry is not necessarily injured merely because one competitor in the industry sustains a loss of business. An injury to competition within an industry may be proven by an appreciable reduction in the number of competitors or by some other outward sign of adverse effects on competitive conditions. "But adverse impact is simply not shown by a loss of profits, or even by the total elimination of one competitor." Robert's Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 491 F. Supp. 1199, 1213 (D. Hawaii 1980), aff'd, 732 F.2d 1403 (9th Cir. 1984). An antitrust plaintiff must demonstrate that the defendants' conduct had "some anti-competitive effect beyond the plaintiff's own loss of business." Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 450 (9th Cir. 1979); Gough v. Rossmoor Corp., 585 F.2d 381, 386 (9th Cir. 1978), cert. denied, 400 U.S. 936, 99 S. Ct. 1280, 59 L. Ed. 2d 494 (1979). Thus, to prove an antitrust violation in this case, the plaintiff had to demonstrate an actual anti-competitive impact on the providing of abortion services within the relevant market area. See Tunis Bros. Co., 763 F.2d at 1490.

 The plaintiff here has introduced no such evidence. *fn6" There has been no evidence even suggesting that the defendant's protest activities at the Center have diminished competition within the plaintiff's market: no evidence of an appreciable reduction in the number of competitors, no evidence of any other outward sign indicating an adverse effect on competitive conditions. The plaintiff has made no attempt to define the relevant service market allegedly affected, nor has the plaintiff characterized or quantified the alleged anti-competitive damage. The plaintiff has failed to even establish for the jury who all its competitors are.

 The plaintiff has also been unable to demonstrate that it, the party bringing the antitrust action, has sustained any revenue damage. The plaintiff has deleted from its prayer for relief any claim based on lost revenues. It has introduced no statistics indicating a fall in either gross income or net profits. It has put on no witnesses to testify as to lost good will or customer confidence. In fact, the plaintiff's witness conceded on cross-examination that no patient, ...


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