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Cemar, Inc. v. Nissan Motor Corp. in U.S.A.

filed: February 27, 1990.

CEMAR, INC., T/A RISING SUN MOTORS
v.
NISSAN MOTOR CORPORATION IN U.S.A., CEMAR INC., APPELLANT



Appeal from the United States District Court for the District of Delaware, D.C. Civil No. 87-165.

Stapleton and Mansmann, Circuit Judges, and Ackerman, District Judge.*fn*

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

In this appeal from an entry of summary judgment against an automobile dealer in his suit for breach of contract, violation of the Sherman Act, and negligent misrepresentation brought against his automobile dealership franchiser, we are faced with a question of whether the district court's certification for appeal pursuant to Federal Rule of Civil Procedure 54(b) satisfies the requirements of Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 64 L. Ed. 2d 1, 100 S. Ct. 1460 (1980) and Allis-Chalmers Corp. v. Philadelphia Electrical Co., 521 F.2d 360 (3d Cir. 1975). Since we conclude that the district court failed to sufficiently explain its reasons for Rule 54(b) certification, we will dismiss the appeal, vacate the judgment entered July 19, 1989 as final pursuant to Rule 54(b) and remand the case to the district court for further proceedings.

I.

Cemar, Inc., a Delaware Corporation, was founded by its president William T. Murray in 1973. Mr. Murray had been a automobile salesman for a number of years when he received financial backing from a previous employer in order to open a Nissan dealership in Rising Sun, Maryland. By 1976, Murray realized the market in Rising Sun, a small rural community, was too small to support a Nissan dealership. He attempted several times to have the dealership relocated, but Nissan denied his requests.

After 1980, the financial situation at Murray's dealership began to worsen due to high interest rates and the general nationwide recession. By 1982, Murray intensified his efforts to obtain a new location when he learned that the road leading to his dealership was to be closed in order for repairs to be made to the bridge. Sometime around May, 1982, three Nissan representatives visited Murray and informed him that Nissan would approve his move from Rising Sun to Perrysville, Maryland. Although Murray still felt he could have a better location, he was pleased to be leaving the Rising Sun location.

One of the aspects of the Nissan dealership at Rising Sun which Murray wanted to carry over to the Perrysville dealership was the perpetual nature of the contract rather than have an agreement for a specific number of years.*fn1 The district sales manager arranged for Cemar, Inc. to take a five year lease on the Perrysville dealership, with a minimum of two five year options. On July 1, 1982, Murray sent a form commitment letter to Nissan with respect to the Perrysville location and, by way of a second form, terminated the existing agreement between Cemar, Inc. and Nissan. Murray alleges that when he questioned the second form, the district sales manager dismissed it as a mere procedure. In addition, Murray was given a two year term agreement which he was required to sign in blank. When Murray received the form from Nissan, the time period had been unilaterally changed to one year. Murray finally opened the Perrysville dealership in late August or early September, 1982.

As part of the agreement between Nissan and Murray, Nissan was to allocate to Murray a set number of cars each month. The dealer allocation started at sixteen cars and gradually dwindled down to two. The Perrysville dealership was never successful and Murray incurred significant losses which required him to get additional bank financing. Eventually, Murray realized he would have to sell the dealership to avoid bankruptcy. Murray met with Tim and A.J. Cox to discuss the plans for a sale. They had originally discussed a $600,000 deal, but the Coxes lowered their offer to the amount of Murray's indebtedness. A Buy/Sell Agreement was reached in March, 1983.

Murray, through Cemar, Inc., brought suit against Nissan*fn2 alleging inter alia: violation of the Dealers Day In Court Act, 15 U.S.C. §§ 1221 et seq., which provides that a dealer may recover damages caused by the failure of an automobile manufacturer to comply with the terms of a franchise; violation of the Maryland Transportation Code, Md. Trans. Code Ann. §§ 15-207, 15-209, 15-211; violations of the Sherman Act, RICO and Robinson-Patman Act; negligent misrepresentation; and breach of contract. Nissan counterclaimed against Cemar, Inc., its president William T. Murray, and its shareholders alleging fraud, misrepresentation, breach of contract, and unlawful interception of oral communications.*fn3 In addition, Nissan filed a motion to dismiss the Sherman Act, Robinson-Patman Act, and RICO claims. The district court granted the motion and gave Cemar 30 days to amend its complaint, however, Cemar was unable to allege any new facts to save those counts. In July, 1988, Nissan filed a motion for summary judgment, which was granted May 17, 1989. On July 17, 1989, the district court entered its order granting judgment for Nissan on its motion to dismiss and the motion for summary judgment. The district court certified the order pursuant to Rule 54(b) finding there was "no just reason for delay in entry of judgment." Nissan's counterclaims remain, however. The judgment was entered July 19, 1989. Cemar, Inc. appeals.

II.

We have jurisdiction of a final order pursuant to 28 U.S.C. § 1291. Consequently, "our jurisdiction depends upon whether the district court properly granted 54(b) certification." Allis-Chalmers Corp. v. Philadelphia Electric, 521 F.2d 360, 362 (3d Cir. 1975). Thus, when faced with an appeal from a Rule 54(b) certification of finality, we must "scrutinize the district court's evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units." Curtiss-Wright Corp. v. ...


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