# May Department Store v. Graphic Process Company, and Bel-Aire & Associates, Inc.

> Court of Appeals for the Ninth Circuit · May 27, 1980 · 637 F.2d 1211

URL: https://www.frixlaw.com/law-library/cases/9467419

## Case

- **Full name:** MAY DEPARTMENT STORE, Plaintiff-Appellant, v. GRAPHIC PROCESS COMPANY, Defendant-Appellee, and Bel-Aire & Associates, Inc., Et Al., Defendants
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 27, 1980
- **Citations:** 637 F.2d 1211; 1980 U.S. App. LEXIS 17238
- **Precedential status:** Published
- **Opinion:** Dissent by Skopil
- **Judges:** Choy, Hug, Skopil
- **Cited by:** 74 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9467419

## How later opinions describe it (automated extraction)

- finding that a material issue of fact existed as to the dominant nature of a transaction wherein the defendant graphic company reformatted the plaintiff’s photograph to make it suitable for reproduction in a newspaper
- stating that the law requires a claim under Section 2(c) to “constitute a sale of ‘goods, wares, or merchandise’ and not merely a contract for services”

## Opinion text

SKOPIL, Circuit Judge
(dissenting):
I dissent from that portion of the majority’s opinion reversing the summary judgment order.
I agree with the majority opinion’s description of the relevant transactions between the parties. I also agree that resolution of this controversy requires us to adopt the “dominant nature” standard. I disagree, however, that application of the dominant nature standard supports a finding that summary judgment was improperly granted. I therefore dissent.
I find that Graphic adequately demonstrated that the dominant nature of the parties’ transactions was the sale of services and not the sale of goods. Graphic does nothing more than transform May’s artwork into an almost identical image. The production of a tangible item is only incidental to the service provided by Graphic.
I believe that the legislative history of the Act supports my conclusion. Although the history makes no definitive distinction between goods and services, it is clear that Congress intended to limit the Act to tangible items of trade. Representative Patman explained the Act in these terms, which emphasized its application to tangible products:
“ . . . this bill insures to the independent dealer who buys one carload, whether of groceries, dry goods, hardware or any other commodity, the same price that is given to the chain buying 10 carloads of the same good, . . . ” 79 Cong.Rec. 9079, June 11, 1935.
Although Representative Patman was describing “commodities” in reference to 15 U.S.C. § 13 (a), I believe that the statement is equally applicable to defining “goods” for purposes of 15 U.S.C. § 13 (c). In the absence of congressional action to expand the scope of the Act’s application, 1 I would decline to apply it to transactions which are borderline between goods and services. I would' therefore affirm the district court, holding that Graphic was entitled to judgment as a matter of law.
. A proposal to amend 15 U.S.C. § 13 (a) to expand the term “commodities” to include specific services was introduced in Congress in 1957. Congress rejected the proposal and affirmed its intent that the provision cover “only tangible commodities and not services”. See H.R. 8277, 85th Cong. 1st Sess., 103 Cong.Rec. 9898 (1957); H.R. 607, 85th Cong. 1st Sess. 66-67 (1957).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467419. Public record. Not legal advice.