Petition — Olympia Roofing Co. v. Celotex Corp.
Supreme Court brief1989
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\ Supreme Court, U.S,
88-2016 FILED
NO. alla
Fy JOSEPH F.
a. ; CLERK
Inthe |
:
——“—-. seem. -
Supreme Court of the United States
OCTOBER TERM, 1988
OLYMPIA ROOFING COMPANY, AND OLYMPIA
COMPANY, INC., ET AL
Petitioners
Vv.
THE CELOTEX CORPORATION,
STANDARD-TAYLOR INDUSTRIES, INC.,
STANDARD ROOFING COMPANY OF
- NEW ORLEANS, INC.,
ROBBINS TAYLOR, AND
PIERRE F. CARRIERE, ET AL
Respondents
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 89-3181
USDC #CA 76-373-A
ORIGINAL PETITION FOR WRIT OF CERTIORARI
~ W.J. MANION
P. O. Box 1776
Slidel, LA 70459
(504) 649-4000
La. Bar No. 9098
Attorney for Olympia Roof-
ing Company, Olympia Com-
pany, Inc.
Petitioners
A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555
i
QUESTIONS PRESENTED FOR REVIEW
Petitioner has lodged two Writs of Certiorari relative
to primary judgment of United States District Court,
Eastern District of Louisiana, CA No. 76-373A:
a) First Writ of Certiorari relates to judgment
rendered by U. S. Court of Appeals for the Fifth Circuit,
No. 84-3850;
b) This second Writ of Certiorari relates to judgment
rendered by U. S. Court of Appeals for the Fifth Circuit,
No. 89-3181.
1. Has Court of Appeals for the Fifth Circuit ignored
the notice of judiciary violations of constitutional
guarantees claimed by petitioners, Olympia Roofing Com-
pany and Olympia Company, Inc. (herinafter disignated
‘““Olympia’’) and W. J. Manion (hereinafter designated ‘‘Mr.
Manion’’)?
2. Has Court of Appeals for the Fifth Circuit used im-
position of sanctions on two occasions to discourage and in-
timidate petitioners to cease and desist urging judiciary
violation of constitutional guarantees?
3. Has Court of Appeals for the Fifth Circuit ignored
Erie Doctrine by failing to be guided by Louisiana law ap-
plicable to this request for Writ of Certiorari as set forth in
Guille v. Dept. of Transp. & Dev., 538 So.2d 1144 (La.App.
5 Cir. 1989); Versailles Arms Apts. v. Gunderson, 377 So.2d
1359 (La.App. 4 Cir. 1978)?
4. Questions presented for review submitted in brief oppos-
ing Court of Appeals for the Fifth Circuit judgment, No.
84-3850, are re-urged in this instance as if ser forth in-
extenso.
ll
LIST OF PARTIES
Pursuant to Supreme Court Rules 21.1(b) and 28.1,
counsel for the Petitioners certifies that the following list
of persons or corporations either have an interest in the
outcome of this case or were parties to the proceeding in
the Court whose judgment is sought to be reviewed.
9.
Petitioners/Plaintiffs/Appellants
. Olympia Company, Inc.
. Olympia Roofing Company
Non-Party/Petitioners’ Counsel
. W. J. Manion
Respondents/Defendants/Appellees
. The Celotex Corporation
. Standard-Taylor Industries, Inc.
. Standard Roofing Company of New Orleans,
Inc.
. Robbins Taylor
. Pierre F. Carriere
OTHERS
Johns-Manville Sales Corporation
10. Clerk, U.S. Civil District Court, Eastern
District of La.
11. Clerk, U. S. Court of Appeals for the Fifth
Circuit
12. Hon. Charles Schwartz, Jr.
13. Jack N. Price
W. J. MANION,
individually and attorney of
record for Olympa Roofing Com-
pany, Olympia Company, Inc.,
Petitioners/Plaintiffs/ Appellants
La. Bar No. 9089
P. O. Box 1776
Slidell, LA 70459
(504) 649-4000
ili
TABLE OF CONTENTS
Questions Presented for Review .
fame OE Peres ............ 2...
Table of Contents...........
Table of Authorities .....
Judgments and Opinions Below
eurepeetaeoems.. .. sw ww ws
Constitutional Provisions and
Statutes Involved ...
Statement of the Case.
Reasons for Granting the Writ
Conclusion ....
Certificate......
APPENDIX:
Appendix A
Judgment, Order and Reasons 76-373 - A
Appendix B
U. S. Court of Appeals 5th Circuit Judgment
September 23, 1985 .
Appendix C
Judgment, Order and Reasons
Appendix D
Motion and Order for Release of Exhibits
Appendix E
Order Denying Motion for Judgment
Appendix F
Judgement CDC, Parish of Orleans 8909
Appendix G
Minute Entry February 9, 1989 .
Appendix H
Dismissal and Sanctions Imposed April 21, 1989
nw ee
iv
TABLE OF CONTENTS (continued)
Page
Appendix I
Petition for Rehearing denied May 12, 1989 .......A-62
Appendix J
Requirement to Submit Record Excerpts by April 24,
Rene Ane AS aoe a ate aa ee
Vv
TABLE OF AUTHORITIES
CASES: Page
Guillie v. Dept. of Transp. & Dev., 538 So.2d 1144
(La.App. 5 Cir. 1989)........... See a 1,6
Linn v. Chivatero, 714 F.2d 1278 (sth ¢ Cir. 1963) ..... 5
Manson v. Pulliam, 402 F.Supp. 978, 980 (USDC,
Pees Ss I iars eine eis ae Rn emcee Cee 6
Powell v. United States, 300 U.S. 276, 283, 57 S.Ct.
470, 475, 81 L.Ed. 643 (1937)..................... 2
Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir. 1975) . .6
Rutherford v. United States, 702 F.2d 580 (5 Cir.
| SR Soa eerorean 6 Aree lh bres Per er comer 6
Versailles Arms Apts. v. Granderson, 377 So.2d
See GaiApe. 4 Gr. 978). oe ea ce 1,6
Constitution
Amendment 4...
Amendment 5.......... ee ase
Amendment 14 (Scope of restrictions Incorporated
in violation of constitutional guaranties under
State Action in corporated by analogy in United
States Const. Amend. 5 ................. Stee
Statutes
SG ULOAA. 1208): os ee ee a
28 U.S.C.A. 1331 (Federal Question) . .
78 USGA: 210) GS e
La. C.C.P. art. 2132, 2161
Rules
USDC, EDLA, Local Rule 8.2............ oe ee ee
mw Ww bd
The petitioners, Olympia Company, Inc., Olympia
Roofing Company, and their undersigned counsel, W. J.
Manion, respectfully pray that a Writ of Certiorari issue to
review the final order of the United States Court of Ap-
peals for the Fifth Circuit, entered in the above entitled
proceedings on May 12, 1989 (Appendix H)
JUDGMENTS AND OPINIONS BELOW
Motion and Order for New Trial of CA No. 76-373A
in United States Court, Eastern District of Louisiana, was
filed February 2, 1989 and dismissed on February 9, 1989
(Appendix F, A-49)
Motions to Dismiss were granted appellees, Celotex
Corporation and Standard-Taylor Industries, et al
(hereinafter designated ‘‘Standard’’), on April 21, 1989
with remand to the District Court to determine appropriate
amount of attorney fees, costs and expenses to be added to
sanctions of $15,000 in addition to previous sanctions of
$11,537.86 already paid (Appendix G, A-52).
Prior to dismissal of April 21, 1989, petitioners were
ordered by Clerk of Court, U. S. Court of Appeals for the
Fifth Circuit, to submit Record Excerpts as required by
Local Rule 30. Record Excerpts were not due to be filed
before April 24, 1989 (Appendix I, A-55).
Since judgment of dismissal was granted prior to re-
quired filing of Record Excerpts and these Record Ex-
cerpts not being filed into the record, petitioners requested
a re-hearing on April 24, 1989.
Petition for re-hearing was denied on May 12, 1989,
2
thereby making judgment of dismissal with sanctions and
penalties entered on April 21, 1989 executory (Appendix H,
A-54).
JURISDICTION
(S.Ct. Rule 15; 12.3)
The following statutes and constitutional guaranties
set forth the jurisdiction necessary to lodge this Writ of
Certiorari:
This is an appeal from a final order subject to at-
torney fees, costs, penalties determinations, (Appendix H,
A-54). A final appendable order is one which ends the ac-
tion or proceedings before the tribuanl which makes it,
leaving nothing further to be determined by that tribunal
or required to be accomplished other than the ad-
ministrative execution of that decision. Powell v. United
States, 300 U.S. 276, 283, 57 S.Ct. 470, 475, 81 L.Ed. 643
(1937)
28 U.S.C.A. 1254 (1)
28 U.S.C.A. 1331 (Federal Question)
28 U.S.C.A 2101 (C)
U.S.C.A Const. Amend. 4, 5
U.S.C.A. Const. Amend. 14 (Scope of restrictions
on powers of State are embodied by analogy
in U.S.C.A. Const. Amend 5)
Doctrine of Anomalous Jurisdiction
3
CONSTITUTIONAL PROVISION
AND STATUTES INVOLVED
(a) Fifth Amendment, United States Constitution:
No persons shall...“‘be deprived of life, liberty or property
without due process of law...’.
(b) Fourth Amendment, United States Constitution:
The right...‘‘to be secure...against unreasonable searches
and seizure’.
(c) Fourteenth Amendment, United States Constitution:
No State shall deprive any person of life, liberty or proper-
ty without due process of law...‘‘and equal protection of the
law’’. (Extended by analogy to Federal action protected by
U.S.C. Const. Amend. 5)
STATEMENT OF THE CASE
Antitrust violations were alleged against the Celotex
Corporation (‘‘Celotex’’), Standard Roofing Company of
New Orleans, Inc. and Standard-Taylor Industries, Inc.
(collectively referred to as ‘“‘Standard’’), Robbins Taylor
(‘Taylor’) and Pierre F. Carriere (‘‘Carriere’’), and suit was
filed on February 5, 1976 in United States District Court,
Eastern District of Louisiana, bearing Civil Action No.
76-373-A (hereinafter designated as ‘‘76-373A’’, Honorable
Charles Schwartz, Jr., presiding Judge.
All discovered material were designated. ‘‘Confiden-
tial,’’ subject to Protective Orders. On August 16, 1979
(Docket #186), Judge ordered that plaintiffs file in the
record a copy of any and all exhibits referred to in plain-
4
tiffs’ statement of the case. That was impossible if con-
fidentiality was to be preserved and protected.
On December 15, 1979, W. J. Manion, Olympia’s
counsel (‘‘Mr. Manion’’), placed all discovered exhibits,not
subject to summons, and countervailing affidavits in 5
sealed boxes in registry of District Court (Docket Entry
200 & 207), subject to Protective Orders allowing for notic-
ed inspection of contents of said 5 boxes in camera only.
Many of these aforsaid exhibits were discovered
from Johns-Manville Sales Corporation (‘‘J/M’’), who
ultimately went into bankruptcy, and automatic stay order
was never petitioned.
None of the exhibits in the 5 boxes were ever entered
into evidence, yet defendants used them to support their
Motion for Summary Judgment.
Summary Judgment was granted defendants. Upon
substitution of plaintiffs’ counsel for appeal, the 5 exhibit
boxes were not available for inspection or appellate brief
preparation, resulting in submittal of a sub-standard brief
by plaintiff-appellants, which incurred double cost,
penalties and sanctions dated September 23, 1985. Subse-
quent thereto, Olympia sued Jack N. Price for legal
malpractice.
Mr. Manion frequently requested return of all boxes
and pleadings, to no avail. On June 10, 1987, Mr. Manion
paid two (2) fees to retrieve records from federal warehouse
storage in Ft. Worth, TX. Upon receipt of that retrieval,
the 5 impounded boxes were missing. Deputy Clerk of .
District Court made numerous searches, without result.
When faced with a Writ of Mandamus demanding
surrender of 5 boxes on October 12, 1988, those boxes were
found to have been stored in U.S. Custom House, New
+)
Orleans, Louisiana. When produced, the seals of the boxes
were broken, and some documents were in disarray and
misplaced.
From the foregoing facts, Mr. Manion was denied ac-
cess to 5 boxes to properly prepare an appeal to rebut and
resist Summary Judgment. It is unconscionable to assess
sanctions and penalties when the Courts frustrated many
requests to return Olympia’s and Mr. Manion’s property
and documents that Mr. Manion was personably responsi-
ble for under the Protective Orders.
We are talking about 9 years of concealment. Under
these circumstances, all judgments, orders, sanctions and
penalties should be recalled and litigation re-opened to
complete discovery necessary for trial. Res judicata does
not attach with ill practices invalidating constitutional
guaranties.
Prescription can be addressed in time only from the
date the 5 boxes were returned to Mr. Manion, which occur-
red in October, 1988.
—
In summation, it is hard to believe that personnel in
both offices of the Clerk of Court could be a party to such
conduct; whether their defense is that they responded to
direct orders from others unknown is not the direction and
intention of this brief. It will suffice to state that abuse of
legally protected rights and interests of Olympia and Mr.
Manion have occurred which requires a judicial remedy.
REASON FOR GRANTING THE WRIT
Any request by plaintiffs for return or inspection of
records allegedly retained (lost) by judiciary in violation of
Fourth Amendment is based on the constitutional
guarantee and right to be free from unreasonable searches
and seizures. Linn v. Chivatero, 714 F.2d 1278 (5 Cir. 1983)
6
Even after the 5 boxes were produced by Clerk of
District Court, District Judge demanded that these boxes
be returned to him within 21 days of release (Appendix D).
This demand runs counter to Local Rule 8.2 of District
Court which requires removal of all exhibits within 30 days
of final disposition of the case; if not removed, then the ex-
hibits may be destroyed or otherwise disposed of by the
Clerk of Court.
Fifth Circuuit has held that cause of action arising
under the Fifth Amendment protection relates to action by
the Federal government and not state officials or private
persons. However, the problem of stigmatization address-
ed in 14th Amendment violation by State Action of Loui-
siana Judges which affects liberty interest of plaintiffs and
Mr. Manion are protected by analogy under the due pro-
cess guaranties of the 5th Amendment. Rutherford uv.
United States, 702 F.2d 580 (5 Cir. 1983)
The Court has inherent power to police the actions of
officers of the Court and are seriously concerned with any
callous disregard for constitutional rights. Richey v.
Smith, 515 F.2d 1239, 1243 (5 Cir. 1975); Manson uv.
Pulliam, 402 F.Supp. 978, 980 (USDC, ND, Ga 1975)
Absence of records and exhibits necessary to perfect
appellants’ brief requires remand for trial, and any fault
relative to those missing exhibits is not imputable to the
plaintiff-appellants after December 15, 1979. Versailles
Arms Apts. v. Granderson, 377 So.2d 1359 (La.App. 4 Cir.
1979); Guillie v. Dept. of Transp. & Dev., 538 So.2d 1144
(La.App. 5 Cir. 1989); La. C.C.P., art. 2132, 2161
MEE Pe Pee ae
7
CONCLUSION
It is evident that District Judge and Appellate
Judges are of one mind that their examination of 5 exhibit
boxes unknown to any of the parties and with knowledge
that the contents of these boxes were not in evidence, is not
germane and controlling in violation of constitutional
guarantees of petitioners.
It is urged that this Court will judge differently and
recall all orders, sanctions, penalties, attorney fees and
costs, and remand this 76-373-A litigation back to the
District Court for completion of discovery and hearing bas-
ed on submitted pre-trial statements as the case was
postured on and before December 15, 1979.
Relying on the authorities cited herein and principles
of equity, Writ of Certiorari should be granted.
8
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing original brief of
petitioners has this aes day of
nvithinana ae _, 1989 been mailed
to interested parties and counsel of record.
W. J. MANION
A-1
APPENDIX A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Filed
NOV 15, 1984
OLYMPIA COMPANY, INC. ET AL Civil Action
VERSUS No. 76-373
THE CELOTEX CORPORATION ET AL Section ‘‘A’”’
JUDGMENT
Considering the written reasons on file herein.
accordingly;
IT IS ORDERED, ADJUDGED, AND DECREED,
that there be judgment in favor of defendants Celotex Cor-
poration, Standard-Taylor Industries, Inc., Standard Roof-
ing Company of New Orleans, Inc., Robbins Taylor, and
Pierre F. Carriere, and against plaintiffs Olympia Com-
pany, Inc. and Olympia Roofing Company, Inc., dismissing
plaintiffs suit with prejudice, plaintiffs to bear all costs.
New Orleans, Louisiana, this 15th day of November,
1984.
/s/ Loretta G. Whyte
LORETTA G. WHYTE, CLERK
APPROVED AS TO FORM:
/s/ illegible
UNITED STATES DISTRICT JUDGE
A-2
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Filed
NOV 9, 1984
OLYMPIA COMPANY, INC. and Civil Action
OLYMPIA ROOFING COMPANY, INC.
VS. No. 76-373
THE CELOTEX CORPORATION, Section ‘‘A’”’
STANDARD-TAYLOR INDUSTRIES, INC. ET AL.
ORDER AND REASONS
This matter came before the Court on the motion of
defendant Celotex Corporation (Celotex) and the motion of
defendants, Standard-Taylor Industries, Inc. and related
entities and persons (Standard)! for summary judgment.
Following oral argument, the motions were taken under
submission. Having considered the memoranda, the record
and the law applicable to this motion, the Court grants the
motions of defendants for the following reasons.
I. Course of the Litigation
Plaintiffs, Olympia Company and Olympia Roofing
Co., Inc. (hereinafter jointly referred to as Olympia) in-
stituted this litigation in 1976, alleging, inter alia, various
violations of the antitrust laws. The subsequent course of
this litigation, as is evidenced by the voluminous record, in-
volved extensive discovery, several amendments to
1 In Plaintiffs’ Fourth Amended Complaint, (Record (R.) Vol. X, Docu-
ment (D.) 218), superseding all prior pleadings of plaintiffs, the following
defendants were named: (1) The Celotex Corporation, (2) Standard-
Taylor Industries, Inc., (3) Standard Roofing Company of New Orleans,
Inc., (4) Robbins Taylor, and (5) Pierre F. Carriere. All of the defendants,
with the exception of Celotex, are hereinafter sometimes referred to
jointly and collectively as ‘‘Standard.”’
A-3
plaintiffs’ complaint, substitutions of counsel for plaintiffs,
and numerous extensions of cut-off dates, continuances
and the like, granted at the instance of plaintiffs. In late
1979, defendants Celotex and Standard filed motions for
summary judgment, seeking dismissal of the action.
However, prior to the hearing on those motions, the Court
was apprised of plaintiffs’ intention to again substitute
counsel. The Court allowed the substitution, In order to af-
ford plaintiffs’ latest counsel an opportunity to develop the
necessary facts, the Court also ordered that the pending
motions for summary judgment be continued indefinitely.2
By an Order of the Court, plaintiffs then filed their
Fourth Amended Complaint, which superseded all prior
pleadings of plaintiffs. As the result of a status con-
ference held on May 14, 1980, the Court entered an Order,
setting forth the manner in which this case was to further
proceed, and requiring plaintiffs to file a Pretrial State-
ment which would thoroughly set forth plaintiffs’ case and
the factual and evidentiary basis for same.* Specifically,
plaintiffs were directed to articulate their claims, by set-
ting forth “in simple, declarative sentences all material
facts relied upon by Plaintiffs in support of their claims for
relief... ’’ The Court directed that the “‘Pretrial Statements
shall serve as each parties’ contribution to the Pretrial
Order, ’’ and specified that ‘‘[a]Jny factual contention, legal
contention, any claim for relief or defense in whole or in
part, or affirmative matter not set forth in detail as provid-
ed hereinabove shall be deemed abandoned. uncon-
2 Ina Minute Entry of January 4, 1980, the Court noted that it was ‘‘of
the opinion that [plaintiffs’ counsel’s] entrance in the case [would] result
in a narrowing and clarifying of the issues and [would] in all probability
obviate the necessity of hearing all of the contentions set forth in the
motions for summary judgment.”’ R. Vol. X, D. 211.
3 R. Vol. S, D. 212, 218, 219 and 220.
4 R. Vol. X, D. 221.
A-4
troverted, or withdrawn, notwithstanding the contentions
of any pleadings or other papers previously filed herein.
The case shall be tried upon the Pretrial Statements.”’
Finally, the Court provided that ::[iJn the event defendants
choose to do so, they may admit Plaintiffs’ narrative facts
relating to a legal contention or contentions for purpose of
a Motion for Summary Judgment or Partial Summary
Judgment. Any such Motion will be heard in accordance
with the Federal Rules of Civil Procedure and the Local
Rules of this Court, except that the narrative statements of
fact in the parties’ Pretrial Statements shall serve as the
Statements of Material Facts required by Local Rule
3.9."° Furthermore, plaintiffs were allowed to take addi-
tional discovery subject only to the restriction that such
discovery not be duplicative. Plaintiffs’ Pretrial State-
ment, although it was filed approximately six months after
the deadline set by the Court for its filing, was accepted by
the Court.© Thereafter, the voluntary dismissal of certain
of plaintiffs’ claims and the motions of defendants to strike
necessitated amendments to the plaintiffs’ Pretrial
Statement.’ In its final form, Plaintiffs’ factual conten-
tions are set forth in their Second Amended Pretrial State-
ment. In response to the motions of defendants for sum-
mary judgment, plaintiffs filed into the record a letter of
counsel, stating that ‘‘the pretrial statement contains both
5 R. Vol. X D. 221, Order of May 14, 1980, ¢€ 25, 26, 37-39.
6 Defendants filed motions to dismiss in May of 1982 based upon the
failure of plaintiffs to comply with the Court’s Order in this regard. On
August 10, 1982, one day prior to the scheduled hearing date on those
motions, plaintiffs filed the Pretrial Statement.
7 R. Vol. XII-XIII, D. 282-298.
A-5
the facts and law on which Plaintiffs must rely.’’ the mo-
tions were fixed for hearing on a date approximately two
weeks prior to the pretrial conference and two days prior to
the expiration of the discovery deadline set by the Court.
Summary judgment is appropriate where ‘‘the
pleadings, depositions, answers to interrogatories, and ad-
missions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a summary judgment
as a matter of law.’’ Rule 56(c), Fed. Rules Civ. Proc. When
a motion for summary judgment is made and supported in
the manner provided in Rule 56(e) of the Federal Rules of
Civil Procedure, ‘‘an adverse party may not rest upon the
mere allegations or denials of his pleadings, but his
response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a
genuine issue for trial.’’ Rule 56(e), Fed. Rules Civ. Proc.
The Court is not unmindful of the Fifth Circuit’s ad-
monition to approach summary judgment with caution,
particularly with respect to anti-trust litigation. Tran-
source International, Inc. v. Trinity Industries, Inc., 725
F.2d 274, 279 (5th Cir. 1984). Nonetheless, summary judg-
ment is sometimes appropriate in anti-trust actions. ‘‘It is
now established that ‘simply because a suit is brought
under the antitrust laws does not foreclose a summary
judgment.””’ Transource International, Inc. v. Trinity In-
dustries, Inc., 725 F.2d 275, 279, quoting Jn re Municipal
Bond Reporting Antitrust Litigation, 672 F.2d 436, 440
(5th Cir. 1982), citing Aladdin Oil Co. v. Texaco, Inc., 603
F.2d 1107, 1112 (5th Cir. 1979).
Despite the long and arduous course of this litiga-
tion, despite every reasonable opportunity afforded the
plaintiffs to discover triable issues of fact, and despite the
—————————————
A-6
Court’s many efforts to ensure that plaintiffs’ alleged
grievances, if proved, would be redressed, the Court finds
that defendants are entitled to summary judgment, based
upon the uncontroverted evidence and the law applicable to
this case.
II. Motion of Celotex for Summary Judgment
A. The Facts
For the purpose of this motion, Celotex has admitted
all of the narrative statements of fact in plaintiffs’ Second
Amended Pretrial Statement, except for those which Olym-
pia admits have no factual basis or support and which have
been conclusively refuted with sworn testimony based
upon personal knowledge. The narrative statements of fact
are incorporated herein by reference and are attached
hereto as Appendix I. Additionally, Celotex has submitted
other facts which are uncontested and which may be
material. These are contained in Celotex’s Rule 3.9 State-
ment are supported by the evidence and have not been
rebutted or controverted by plaintiffs in the manner pro-
vided under rule 56(e). Thus, the Court accepts these facts
as undisputed.
Based upon plaintiffs’ narrative statement of facts
and the record herein, Olympia’s contentions may be sum-
marized as follows. Olympia competed with Standard and
other similar companies in securing roofing jobs and fur-
nishing roofing services within the New Orleans area. In
doing so, Olympia purchased roofing materials from
Celotex or its business predecessors. For several years,
Olympia was on Celotex’s Approved Roofers list. This, bas-
ed upon the uncontroverted evidence, enabled Olympia to
secure a Celotex roofing bond covering any roof that (1)
was installed and repaired by an approved roofer (2) using
Celotex materials (3) in accordance with Celotex’s publish
A-7
ed specifications. Roofing bonds are significant in the con-
text of this case for two reasons. First, Olympia was a
union roofing contractor.8 Architectural specifications
control whether a roofing job must be performaed with
union labor and whether a roofing bond will be required.
According to Olympia, these specifications provide that
virtually all large commercial roofing jobs ($250,000 and
over) must be bonded and applied by union roofers. Accor-
dingly, Olympia contends that the ability to secure a bond
was indispensible to a union roofing contractor in securing
such jobs. Second, when Celotex’s competitors reduced
their bond coverage for unspecified reasons, Celotex
‘‘became possessed of a unique bond program,”’ and was,
thus, able to achieve a significant share of the market for
‘‘sale of roofing materials to bonded union roofing contrac-
tors’’ in the Greater New Orleans Area ‘‘because of its uni-
que bonding program.'’9
According to Olympia, Celotex thereby obtained a
‘dominant and monopolistic position’ in the relevant
market, and enjoys a market share in excess of 60%.!°
Plaintiffs also assert that in several instances, Standard
was granted lower prices on certain materials by Celotex
than those granted to Olympia. The factual allegations are
the basis for the alleged violations specified by plaintiffs in
the Pretrial Statement, as follows: (1) monopolization and
attempted monopolization of the relevant markets, (2)
unreasonable restraint of trade within the relevant markets
in violation of Section 1 of the Sherman Act, (3) price
discrimination in violation of Section 2(a) and (f) of the
Robinson-Patman Act, and (4) tying in violation of Section
1 of the Sherman Act and Section 3 of the Clayton Act.!!
8 Although this is not specified, it is implicit in plaintiffs’ contentions.
9 Olympia’s Second Amended Pretrial Statement, €4 18-26, 36.
10 Yq.
1] Olympia's Second Amended Pretrial Statement, Legal Contentions,
P, 32.
A-8
(On the latter allegation, Olympia contends that Celotex
tied the furnishing of roofing bonds to the sale of
materials.) The allegations of plaintiffs’ Pretrial Statement
contain the implications that Celotex and Standard con-
spired, but there is no specific allegation to that effect. A
strict application of the Court’s order relative to the
Pretrial Statement would require that this legal contention
be deemed abandoned or withdrawn. Nonetheless, the
Court has addressed the issue of conspiracy herein.
Celotex contends that all of Olympia’s allegations
are either irrelevant, insufficient, unsupported, or con-
tradicted by unrefuted evidence. Celotex further contends
that certain of Olympia’s claims are time-barred.
B. Fact of Damage and Amount of Injury
Plaintiffs seek treble damages under § 4 of the
Clayton Act, 15 U.S.C. § 15, based upon alleged antitrust
violations under several theories. In order to recover such
damages, a plaintiff must prove (1) a violation of the an-
titrust laws, (2) cognizable injury attributable to that viola:
tion, and (3) at least the approximate amount of damage.
Chrysler Credit Corp. v. J. Truett Payne Co., Inc., 670 F.2d
575, 579 (5th Cir.), cert. denied, 459 U.S. 908 (1982). Mere
proof of an antitrust violation, in and of itself, is not suffi-
cient to support an award for damages; rather, a plaintiff
must prove, as a matter of fact and with a fair degree of cer-
tainty, injury attributable to something the antitrust laws
were designed to prevent. J. Truett Payne Co. v. Chrysler
Motors Corp., 451-U.S. 557, 562-563 (1981). “It is im-
perative that the fact of the damage causing injury be
established.’’ In Re Municipal Bond Reporting Antitrust
Litigation, 672 F.2d 436, 443 (5th Cir. 1982).
Olympia’s conclusory allegations do not demon-
A-9
strate that it has suffered actual injury. The only element
of damage that Olympia has attempted and quantify is
that allegedly attributable to price discrimination.!”
However, that calculation merely presumes damages from
the differential between prices extended to Olympia and
Standard. As is developed further in our discussion of
plaintiff's price discrimination claims, it does not purport
to show actual injury by demonstrating the likelihood that
Olympia lost sales or profits because Celotex extended
discriminatory prices to standard, as required by law for
Olympia to prevail on its claims.!? Summarily, none of
Olympia’s allegations support the conclusion, or even at-
tempt to demonstrate, that it suffered actual injury. The
Court’s review of the entire record in this matter leads to
the inevitable conclusion that plaintiffs’ claim of injury and
for damages resulting therefrom amounts to nothing more
than unsupported assumptions, conclusory allegations,
and undocumented hypotheses, which are insufficient to
withstand a summary judgment motion. In this case, as in
the case of In Re Municipal Bond Reporting Antitrust
Litigation, 672 F.2d 436, 443 (5th Cir. 1982), plaintiffs have
not established a triable issue of fact of injury, or of its
cause, must less the amount of damage. There is a dearth
of evidence which would establish this fact. Yet, at the trial
of this matter, the plaintiffs would have been required to
put forth substantial evidence on this issue. Chrysler
Credit Corp. v. J. Truett Payne Co., Inc., 670 F.2d 575,582
(5th Cir. 1982), cert. denied, 459 U.S. 908 (1982). Olympia i
relies on the statement that it ‘‘propose[s] to offer proof of”
damages. . . employing a ten year straightline projection of
sales and loss net profits for a ‘future’ period of ten yéars
) ae " . .
l2 Olympia's Second Amended Pretrial Statement. €55.
13 See, e.g., Truett Payne Co. v. Chrysler Motors Corps 451 U.S. 557,
562-563 (1981); Chrysler Credit Corp. v. J. Truett Payne Co., 670 F.2d
575, 580 (5th Cir.), cert. denied, 459 U.S. 908 (1982).
A-10
from and after 1976.14 However, this proposed
methodology is of no moment, absent sufficient allegations
of, and evidence to support, the fact of injury, which are
nowhere to be found in the record of this case. Since Olym-
pia has apparently chosen to rest upon its pleadings rather
than substantiating its claims with evidence, summary
judgment is appropriate. Rule 56(e) Fed. Rules Civ. Proc.;
See, e.g., In Re Municipal Bond Reporting Antitrust
Litigation, supra; Jones v. Borden Co., 430 F.2d 568, 574
(5th Cir. 1970).
Having found that plaintiffs’ claim for damages is
fatally deficient in that plaintiffs have failed to produce
evidence of injury and the amount of damages, the Court
has in effect found that summary judgment on Olympia’s
claims is warranted herein. Nonetheless, for the sake of
completeness, the Court further finds that summary judg-
ment is warranted as to each of Olympia’s allegations of
violations of the antitrust laws, as set forth herein.
C. Monopolization
Olympia has failed to adduce evidence upon which a
trier of fact could conclude th*t a prima facie case of
monopolization has been estavushed. the gravamen of
Olympia’s claim is its contention that from and after the
year 1974, Celotex’s unique bonding program eventually
allowed it to achieve a market share in excess of 60%.!°
Olympia’s allegations in connection with this claim are
either unsupported by the facts or directly contradicted by
the evidence, thus, requiring that summary judgment be
granted.
14 Olympia’s Second Amended Pretrial Statement, 55.
15 Olympia’s Second Amended Pretrial Statement, €36.
A-11
Olympia alleges that the relevant product market
consists primarily of union bonded commercial roofing jobs
over $250,000.00 in value.!® Yet, it is uncontested that the
largest job Olympia performed during the period from 1972
to date was in the range of $60,000.00 to $100,000.00.
Olympia’s president testified to this fact.!7 Thus, Olympia
has defined the relevant product market, for purposes of
this litigation, as one in which it was not even a participant
for two years prior to and during the period of time when
Celotex allegedly began to acquire monopoly power.
Moreover, Olympia’s definition of this market reflects an
effect on a specific competitor, rather than the realities of
competition, ignoring a major premise of antitrust litiga-
tion, that is, that the antitrust laws are concerned with
‘the protection of competition, not competitors.’ See,
Brown Shoe Co. v. United States, 370 U.S. 294, 320
(1962).18 Olympia’s allegations of monopolization, in con-
formance with the evidence, cannot proceed past the
threshold determination of the product market allegedly
monopolized. As such, its contentions can only be con-
16 Olympia’s Second Amended pretrial Statement, €€56(g), 58(d)
17 Deposition of William J. Manion, taken on May 31 and June 2, 1977,
Vol. III, Tr. 114-115.
18 The fallacy of plaintiff's reasoning is shown by Justice Stevens’ com-
ments in Mullis v. ARCO Petroleum Corp., 502 F.2d 290, 298-299, (7th
Cir. 1974):
‘The fact that an injury to a particular competitor may be
unusually severe is not a justification for adopting a market
definition which only considers the particular product line
which he has previously sold or purchased. . .And whether
the competition is more intense on the seller’s or the buyer's
side of the market, we may not arbitrarily segregate one
brand from equally acceptable substitutes in order to protect
a particular competitor from injury.”
A-12
strued as going to an effect on a competitor,!9 rather than
to competition in a defined product market.
Furthermore, the relevant geographic market alleged
by Olympia has been artificially delineated without a full
consideration of the facts and evidence. Olympia’s own ex-
perts conceded that the existing information did not in-
dicate whether the market chosen took into account either
the areas in which Olympia actually competed”? or the
areas in which Olympia’s actual competitors competed.?!
This reinforces the conclusion that the nature of the alleged
wrong to Olympia must be couched in terms of an effect on
a specific competitor, rather than on competition. And, as
previously stated, it is the latter of these which the an-
titrust laws seek to protect.
Moreover, Olympia’s allegation that Celotex ac-
quired a market share in excess of 60% can only be termed
sheer speculation, unsupported by any evidence which
could possibly create a triable issue of fact in this regard.
The lack of any evidence which would allow a trier of fact
to determine Celotex’s market share is predicated primari-
ly upon the failure of Olympia to define the relevant pro-
duct and geographic markets on the basis of any evidence
of record. There is simply no data of record from which
even a rough approximation of market shares could be
derived, and the Court is left with no evidence of the origin
19 From the standpoint of adverse effects, the competitor in question is
Olympia; from the standpoint of desirable effects, the competitor in
question is Standard, based upon plaintiffs’ allegations.
20 Deposition of Dr. Jane S. Cromartie, taken on January 5, 1984, Tr.
140-148; Deposition of Phillip W. Jeffress, taken on January 4, 1984, Tr.
79-93, 140-141 & Exhibits 3, 4.
21 Indeed, the geographic market utilized by plaintiffs’ experts did not
include Baton Rouge, Louisiana, although it was a controversy surroun-
ding a Baton Rouge project which precipitated this litigation. See, Jef-
fress deposition, Tr. 54-63; Complaint (R. Vol. I, D. 1).
a
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or accuracy of this figure. Olympia’s experts admitted that
the data accompanying its Second Amended Pretrail State-
ment showed only the percentage of Celotex sales that
went to certain selected roofers in the New Orleans area,
and agreed that this information had little (if any) meaning,
in the context of this case, absent comparable figures for
Celotex competitors. These same experts testified that the
information was incomplete even as to Celotex sales and
conceded that even complete information as to such sales
would not enable them to adequately define Celotex’s share
of the relevant market.22
It is well-settled that the relevant product and
geographic markets must be defined with some degree of
precision to enable the trier of fact to determine the ex-
istence of monopoly power. Dimmit Agri Industries, Inc. v.
CPC International Inc., 679 F.2d 516 (5th Cir. 1982), cert.
denied, 460 U.S. 1082 (1983). ‘‘[A] section 2 plaintiff at-
tempting to prove either completed monopolization or at-
tempt must provide the jury with sufficient evidence to
permit it to define the relevant geographic and product
market.”’ Id. at 525. See also, Walker Process Equipment,
Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172
(1965); Municipal Bond Reporting Antitrust Litigation,
672 F.2d 436, 441 (5th Cir. 1982); Spectrofuge Corp. v.
Beckman Instruments, Inc., 575 F.2d 256, 276, 284-286
(5th Cir. 1978), cert. denied, 440 U.S. 939 (1979). Absent
evidence to create a triable issue of fact in this regard, sum-
mary judgment is appropriate. Scranton Construction Co.
v. Litton Industries Leasing Corp., 494 F.2d 778, 783 (5th
Cir. 1974), cert. denied, 419 U.S. 1105 (1975).
Furthemore, in this Circuit, “‘[i]Jt appears that
something more than 50% of the market is a prerequisite
22 Cromartie Deposition, Tr. 33-35, 62-69, 77-80, 148-149, 207, 266-272,
Exhibits 5 & 6; Jeffress Depositior, Tr. 79-83, 140-141, Exhibits 3 & 4.
A-14
to a finding of monopoly.”’ Cliff Food Stores, Inc. v. Kroger
Co., 417 F.2d 208, 207 n. 2 (5th Cir. 1969). Se also, Dimmit
Agri Industries, Inc. v. CPC International, Inc., 679 F.2d
516, 528-531, nn. 11-13 (5th Cir. 1982), cert. denied, 460
U.S. 1082 (1983). The Fifth Circuit subscribes to the view
that evidence of defendant’s conduct in the market is inade-
quate to sustain a finding of monopoly, absent accurate in-
formation demonstrating a requisite market share. Dimmit
Agri Industries, Inc. v. CPC International, Inc., 679 F.2d
516, 528-531 and nn. 11-14 (5th Cir. 1982), cert. denied, 460
U.S. 1082 )1983); see also, P. Agreeda & D. Turner, II An-
titrust Law $515 (1978).
In the instant case, the record discloses little more
than unsupported and conclusory allegations of Celotex’s
conduct. And, viewing all inferences from the evidence of
record in favor of the non-moving party, there is no
evidence from which a trier of fact could conclude that
Celotex enjoyed the requisite market share. Olympic
argues that “‘industry observers’ have concluded that
Celotex acquired such a market share. Again, this is a con-
clusory allegation which is not borne out by the facts of
this case, as shown by the record. Olympia’s experts con-
cede that there is insufficient data to come to a conclusion,
with any degree of precision or accuracy, as to Celotex’s
share of the market. 2° Nor has Olympia demonstrated for
purposes of defeating summary judgment, anywhere of
record including in its Pretrial Statement, that there is
evidence to support a finding, based on other than specula-
tion, relative to Celotex’s market share. Although in cer-
tain instances, an examination of the evidence on the issue
23 Jeffress deposition, Tr. 63-75; Cromartie deposition, Tr. 207. We note
that one of these experts testified that he reached a conclusion of market
power, based upon Celotex’s bonding program which set it apart from
other competitors. Jeffress deposition, Tr. 74-75. However, as is discuss-
ed, infra, Celotex’s the bonding program does not constitute a willful ac-
quisition of monopoly power, as_ required for a finding of
monopolization.
A-15
of market share would reveal deficiencies which go to the
weight and sufficiency of the evidence, in the instant case,
there is simply no basis for a trier of fact to determine what
is the relevant product and geographic markets and what
is the defendant’s market share. Under these cir-
cumstances, it would be futile for plaintiffs to proceed to
trial on these claims.
Moreover, Olympia’s allegation of the manner in
which Celotex acquired monopoly power warrants the con-
clusion that defendants are entitled to judgment in their
favor as a matter of law. Olympia alleges that Celotex
‘‘became possessed of an unique bond program’’, which
allowed it to achieve a share of the market for sale of roof-
ing materials to bonded union roofing contractors in excess
of 60%. 24 Olympia asserts that this achievement resulted
from charges in the bond programs of Celotex’s com-
petitors, and the circumstances attendant therein. 2° Thus,
based solely upon Olympia’s allegations in this regard, it is
clear that if, in fact, Celotex achieved a market share of
greater than 60% by reason of the bond program, then that
achievement was the result of the unilateral actions of its
competitors, Indeed, Olympia’s experts stated une-
quivocally that Celotex’s monopoly power, if any, was at-
tributable to its bond becoming unique through the actions
of its competitors with regard to their respective bond pro-
grams, as opposed to a willful acquisition of monopoly
power by Celotex. 26 The United States Supreme Court
has made it clear that a claim of monopoly will not lie ab-
sent willful acquisition of power:
24 Olympia’s Second Amended Pretrial Statement, €36.
25 Id.
26 Cromartie deposition, Tr. 38-39, 51-55, 174-178; Jeffress deposition, Tr.
74-75, 94, 113-117, 125-126, 132-134, 189-190. (R Vo.
A-16
‘The offense of monopoly under § 2 of the Sher-
man Act has two elements: (1) the possession of
monopoly power in the relevant market and (2)
the willful acquisition or maintenance of that
power as distinguished from growth or develop-
ment as a consequence of a superior product,
business acumen, or historic accident.”’
United States v. Grinnell Corp., 384 U.S. 563, 570-571
(1966). Olympia’s allegations, insofar as they might be con-
strued to assert the acquisition of monopoly power through
other means are addressed in the discussion below of the re-
maining claims.
D. Attempted Monopolization
In order to prove attempted monopolization under §
2 of the Sherman Act, 15 U.S.C. §2, Olympia must
demonstrate that {1) Celotex had the specific intent to ac-
complish the illegal result, and (2) there was a ‘“‘dangerous
probability” that the attempt would be successful. Spec-
trofuge Corp. v. Beckman Instruments, Inc., 575 F.2d 256,
276 (5th Cir. 1978), cert. denied, 440 U.S. 939 (1979).
Celotex argues that summary judgment should be
granted on this claim based upon Olympia’s failure to pro-
duce any evidence of specific intent. Following our review
of all of the evidence of record, taking the factual allega-
tions of Olympia’s Pretrial Statement as true, and viewing
all inferences from the evidence in favor of the non-moving
party, we are enclined to agree. Olympia’s claim of attemp-
ted monopolization, again, rests primarily on Celotex’s ac-
quisition of a unique bond program, which arose solely
from the unilateral actions of Celotex’s competitors. Based
upon the facts, there is a dearth of evidence from which a
trier of fact could conclude that Celotex had specific intent
to acquire a monopoly. We are not unmindful that sum-
mary judgment is rarely appropriate on the issue of a par-
A-17
ty’s intent. However, in the instant case, there is a more
compelling basis upon which summary judgment must be
granted as to this claim. The Fifth Circuit has held that
proof of the relevant market in attempt cases is required in
connection with the dangerous probability of success ele-
ment of the attempt offense. Spectrofuge Corp. v. Beckman
Instruments, Inc., 575 F.2d 256, 286 (5th Cir. 1978, cert.
denied, 440 U.S. 939 (1979). Specifically, it is necessary for
the plaintiff to establish a dangerous probility of
monopolization in the relevant markets. Id. Thus, Olympia
cannot prevail on this claim, based upon its failure to suffi-
ciently define and establish the relevant markets, as
discussed in sub-part C, above. In this case, evidence is
“entirely lacking of the relevant market, its conditions, or
of a monopoly or a dangerous probability of one’’; thus,
summary judgment is appropriate. Scranton Construction
Co. v. Litton Industries Leasing Corp., 494 F.2d 778, 783
(5th Cir. 1974), cert. denied, 419 U.S. 1105 (1975).
E. Price Discrimination
Celotex contends that Olympia’s claims of price
discrimination are time-barred. A four-year statute of
limitations is provided in §4b of the Clayton Act, 15 U.S.C.
§15b. It is uncontested that Olympia chose to discontinue
dealing with Celotex in October of 1973.27 The original
complaint in this matter was filed on February 5, 1976.28
Price discrimination was not specifically alleged by plain-
tiffs until the filing of an amended complaint on August 31,
1977.29 Rule 15(c) of the Federal Rules of Civil Procedure
provides, in pertinent part, as follows:
27 Deposition of William J. Manion, taken on June 2, 1977. Tr. 126.
28 R. Vol. 1 D. 1.
29 R. Vol. III D. 63.
A-18
‘‘Whenever the claim or defense asserted in the
amended pleading arose out of the conduct, tran-
saction, or occurrence set forth or attempted to be
set forth in the original pleading, the amendment
relates back to the date of the original pleading.”
Pleadings must be construed ‘‘as to do substantial
justice.’’ Rule 8(f) Fed. Rules Civ. Proc. In an antitrust ac-
tion, pleadings must be given a liberal reading. Exhibitors
Poster Exchange, Inc. v. National Screen Service Corp.,
421 F.2d 1313 (5th Cir. 1970), cert. denied, 400 U.S. 991
(1971). Although Olympia’s original complaint did not
specifically set forth an allegation of price discrimination,
it is as that alleged in the original complaint. Thus, the
claim is not time-barred.
Nonetheless, Olympia’s claim of price discrimination
cannot withstand summary judgment for several reasons.
Olympia seeks damages for price discrimination allegedly
(1) in violation of § 2 of the Robinson-Patman Act and (2)
as part of a conspiracy in violation of § 1 of the Sherman
Act. Even assuming that the underlying factual conten-
tions upon which Olympia bases this claim are true, the
claim is untenable.
(1) Robinson-Patman Act
Under § 2 of the Robinson-Patman Act, 15 U.S.C.
§13, Olympia, in order to prevail, would be required to
prove that Celotex discriminated in price (1) between dif-
ferent purchases (2) of commodities of like grade and quali-
ty (3) where the effect of such discrimination is to substan-
tially lessen competition or tend to create a monopoly, or
to injure, destroy, or prevent competition with any person
who either grants or knowingly receives the benefit of such
discrimination, and (4) where such differential is not in
response to changing market conditions. M.C. Manufactur-
ing Co., Inc. v. Texas Foundries, Inc., 517 F.2d 1059,
A-19
1065 (5th Cir. 1975), cert. denied, 424 U.S. 968 (1976). Thus,
a finding that the Act has been violated requires a showing
that purchases are in competition with one another at the
time of the purchases, and that there was a sale of like
goods to at least two different purchases at different prices
with an adverse effect upon competition. Jd.
The uncontested evidence indicates that Olympia
neither purchased materials from, nor placed orders with,
Celotex after October of 1973.39 Yet, Olympia claims
damages for price discrimination from 1972 to 1976.2! It is
abundantly clear that Olympia cannot recover on any claim
for damages allegedly resulting from price discrimination
occurring after October of 1973, based upon the specific
elements of the statute. Furthermore, Olympia has sum-
marized forty-nine alleged instances of price discrimination
in its Pretrial Statement, asserting that these ‘‘relate to
contract work with respect to which Olympia and Standard
were in direct competition.’’®? This allegation is directly
contradicted by the only relevant evidence on the issue.
Specifically, of these forty-nine instances, only six
represented situations in which Olympia and Standard
made roughly contemporaneous purchases of similar goods
from Celotex at different prices.23 And, in those six in-
stances, it is undisputed that Standard purchased
materials from Celotex only after it had been awarded a
roofing job. Based upon these facts, and upon the defini-
tion of a violation under the Robinson-Patman Act, no such
violation is implicated. As previously stated, the Act pro-
tects purchases in competition with one another at the time
30 III Manion deposition (1977) Tr. 112-114, 127-129, II Manion deposi-
tion (1977), Tr. 23-24.
310lympia’s Second Amended Pretrial Statement, { 55.
32 Olympia’s Second Amended Pretrial Statement, § 32.
33 deposition of William J. Manion, taken on August 24, 1978. Tr. 186.
A-20
of the purchases; it is irrelevant that the companies may
have entered into competitive bidding, or that the suc-
cessful bidder was ultimately able to obtain prices below
those offered to its competitiors in the bidding process. M.
C. Mannufacturing Co., Inc. v. Texas Foundries, Inc., 517
F.2d 1059, 1066-1068 (5th Cir. 1975), cert. denied, 424 U.S.
968 (1976).
Additionally, even if Olympia had succeeded in show-
ing that these six instances of ‘‘discrimination’ con-
stituted contemporaneous purchases of similar goods at
different prices, the claim still could not rise to the level of
a violation of the Robinson-Patman Act. A_ simple
mathematical calculation reveals that Olympia paid be-
tween $150 and $235 more than Standard did for the same
materials. Olympia’s expert agreed that price differential
in the amount of $1,000.00 was‘‘definitely” de minimus.**
As previously stated, the Robinson-Patman Act is only
violated where the effect of price discrimination may be to
substantially lessen competition. It is inconceivable that
the deminimus price differential at issue could be said to
have such a substantial, if any, effect on competition. It is
inconceivable that the de minimus price differential at
issue could be said to have such a substantial, if any, effect
on competition. See, e.g., Hanson v. Pittsburgh Plate Glass
Industries, Inc., 482 F.2d 220, 224 n.8 (5th Cir. 1973), cert.
denied, 414 U.S. 1136 (1974).
It should be noted at this juncture that Olympia has
apparently sought to reserve the right to present addi-
tional instances of price discrimination.*° Nonetheless, the
time to have presented such further evidence would have
been in opposition to the motions herein, particularly since
34 Cromartie deposition, Tr. 264.
35 Olympia’s Second Amended Pretrail Statement, ¢ 32
A-21
Olympia has had over seven years in which to discover rele-
vant evidence on the issue and to compile this information.
As defendant points out, at a trial of this matter,
based upon the undisputed facts, Olympia would fail to
make out a prima facie case on the issue of price discrimina-
tion. Moreover, and more importantly for purposes of sum-
mary judgment herein, Celotex has established by uncon-
troverted evidence that any discriminatory price was ex-
tended in good faith to meet a lower competitive offer. Sec-
tion 2(b) of the Robinson-Patman Act 15 U.S.C. §13(b), has
been interpreted to afford an absolute defense to a charge
of violating § 2(a) of the Act, 15 U.S.C. § 13(a) where the
defendant shows that lower prices were extended in good
faith to meet an equally low price of a competitor. FTC v.
Sun Oil Co., 371 U.S. 505, 513-514 (1963). The Affidavits of
Sam E. Brasher and W.W. LeGrow demonstrate that
Celotex lowered its prices to individual roofers only when
necessary to do so in order to meet a lower competitive of-
fer, and only after a formal, detailed multi-tier system of
verification.26 The verification methods employed by
delotex exceeded even those suggested by Olympia’s
expert.°7 And, these methods fall well within the ap-
propriate ones discussed by the Supreme Court in United
States v. United States Gypsum Co., 438 U.S. 422, 454-455
(1978).388 Indeed, this defense has been sustained based
36 Affidavit of Sam E. Brasher €¢ 7-20; Affidavit of W.W. LeGrow ¢¢
20-30.
37 Cromartie deposition, Tr. 245-252.
38 On the issue of the good faith, meeting-competion defense, the
Supreme Court stated:
‘Given the fact-specific nature of the inquiry, it is difficult
to predict all the factors the FTC or a court would consider
in appraising a seller's good faith in matching a competing
offer in these circumstances. Certainly, evidence that a seller
had received reports of similar discounts from other
customers...or was threatened with a termination of pur-
A-22
upon less comprehensive schemes than that employed by
Celotex for verification. See, e.g., Great Atlantic & Pacific
Tea Co. v. FTC, 440 U.S. 69 (1979); Jones v. Borden Co., 430
F.2d 568 (5th Cir. 1970); Callaway Mills Co. v. FTC, 362
F.2d 435 (5th Cir. 1966). The Supreme Court recently set
forth the elements of this defense, as follows:
4
‘In summary, the meeting-competition
defense requires the seller at least to show the ex-
istence of facts that would lead a reasonable and
prudent person to believe that the seller's lower
price would meet the equally low price of a com-
petitor; it also requires the seller to demonstrate
that its lower price was a good faith response to
a competitor’s lower price.”’ Falls City Industries,
Inc. v. Vanco Beverage, Inc., 460 U.S. 428, 103
S.Ct. 1282, 1297 (1983).
Celotex has established this defense based upon un-
controverted evidence. Olympia has asserted no substan-
tiated facts to put the meeting-competition defense at
issue, as it must do in order to defeat summary judgment
on its price discrimination claim. Olympia’s president con-
ceded that he has no information concerning (1) what
Celotex products Olympia bought or attempted to buy at
which prices and at what. times, (2) whether Celotex was ac-
tually meeting competitive offers when it extended price
discounts to other roofers, and (3) whether Celotex attemp-
ted to verify competitive prices.°% Nor has Olympia
(Footnote 38 continued)
chases if the discount were not met...would be relevant in this regard
Efforts to corroborate the reported discount by seeking documentary
evidence or by appraising its reasonableness in terms of available
market data would also be probative as would the seller's past ex
perience with the particular buyer in question.’ 438 U.S. at 454-455
[citations omitted.]
39 Manion deposition (1978), Tr. 55-62, 69-72, 86-88, 91-93, 108-111
115-116, 133, 136.
A-23
provided the Court with any evidence to create an issue of
fact on its price discrimination claims. Under cir-
cumstances such as these, summary judgment is ap-
propriate. Jones v. Borden Co., 430 F.2d 568, 572 (5th Cir.
1970).
We note that this claim is also subject to summary
judgment for the reason to which we previously alluded,
i.e., failure to show any actual injury and damage. Olympia
has calculated its alleged damage from price discrimination
on the basis of an average differential of 5% between the
cost it and Standard paid for Celotex materials. Olympia
has then projected the effect upon its business, both in
terms of profits and increased business, based upon the
hypothetical premise of Olympia being granted an average
5% price reduction.49 This approach is not a proper
method for proving injury and damage under the
Robinson-Patman Act. J. Truett Payne Co. v. Chrysler
Motors Corp., 451 U.S. 557, 562-563 (1981); Chrysler Credit
Corp. v. J. Truett Payne Co., 670 F.2d 575, 577 (5th Cir.),
cert. denied, 459 U.S. 908 (1982). Assuming a violation of
the Act has been shown, damages must be proven rather
than presumed on the basis of the price differentials, since
proof of actual injury is a prerequisite to recovery. Jd. As
previously stated, Olympia has come forth with nothing
but its conclusory allegations of injury and damage, based
upon improper assumptions. Furthemore, Olympia’s
calculation of alleged damages is premised upon the
assumption that the allegedly unlawful price discrimina-
tion will be extended to Olympia, as well as to Standard.
This assumption is unacceptable in actions such as the pre-
sent one. M.C. Manufacturing Co. v. Texas Foundries, Inc.,
517 F.2d 1059, 1063-1065 (5th Cir. 1975), cert. denied, 424
U.S. 968 (1976).
40 Olympia’s Second Amended Pretrial Statement, 55.
2 ee
A-24
(2) Sherman Act
Under Section 1 of the Sherman Act, 15 U.S.C. §1,
‘elvery contract, combination ...or conspiracy in restraint
of trade or commerce...is ... illegal.’’ The conspiracy issue
will be specifically dealt with in a separate discussion.
However, suffice it to say that this claim suffers from
many of the same deficiencies addressed above. Primarily,
the claim is deficient for plaintiffs’ failure to produce
evidence to create a triable issue of fact as to actual injury
and damage. See, e.g., M.C. Manufacturing Co., Inc. v.
Texas Foundries, Inc., 517 F.2d 1059 (5th Cir. 1975), cert.
denied 424 U.S. 968 (1976). Under the Texas Foundries ra-
tionale, Olympia would have to show not merely that
Celotex conspired to drive Olympia out of business by ex-
tending discriminatory prices to its competitors, but also
that (1) its competitors were warded jobs, (2) the com-
petitors received unjustified discounts, and (3) Olympia
was the next lowest bidder. There are not even the barest
of factual allegations, or inferences therefrom, in Olympia’s
Pretrial Statement to support such a conclusion.
F. Tying
Olympia alleges that buyers were ‘‘coerced”’ into
buying Celotex’s building materials in order to obtain the
more desirable bonds, and thus, Celotex tried roofing
materials to roofing bonds in violation of § 3 of the Clayton
Act, 15 U.S.C. §14.4! The Fifth Circuit has identified four
characteristics of an illegal tying arrangement, as follows;
(1) two separate products, the tying product and the tied
product, (2) sufficient economic power in the tying market
to coerce purchase of the tied product, (3) involvement of a
not insubstantial amount of interstate commerce in the
tied market, and (4) anticompetitive effects in the tied
market. Driskill v. Dallas Cowboys Football Club, Inc.,
40 Olympia’s Second Amended Pretrial Statement, €53.
| | Sian
A-25
498 F.2d 321, 323 (5th Cir. 1974). More recently the
Supreme Court has discussed the elements of a tying ar-
rangement and particularily, the necessity that there be two
separate products, in the case of Jefferson Parish Hospital
District No. 2 v. Hyde, ___ U.S. ___, 104 S.Ct. 1551
(1984). The considerations on such a claim are whether two -
separate products were being sold that may be tied
together, and, if so, whether the sellers used their market
power to force their purchases to accept the tying arrange-
ment. Jd. at 1561. Whether two district products are in-
volved ‘‘turns not on the functional relation between them,
but rather on the character of the demand for the two
items.’ Jd. at 1562. A tying arrangement cannot exist
unless two separate product markets have been linked. Jd.
at 1563, We find that the principals ennunciated in Hyde
are dispositive of the instant case. Olympia has not alleged,
nor can it conceivably claim, that Celotex’s materials and
its bonds are two separate and distinct products derived
respectively from two separate and distinct product
markets. There is simply no market for roofing bonds in
and of themselves, absent bonded materials. Furthemore,
and as previously discussed, Olympia has not even defined
the relevant markets sufficiently to state such a cause of
action. Summary judgment on the tying claim is
appropriate.
G. Conspiracy
Olympia’s factual allegations do not state a viable
claim of conspiraty, and the record is completely devoid of
any evidence to support this claim. Olympia apparently
relies on its contention that Celotex ‘‘secretly’’ com-
municated to Standard that Olympia would not be accord-
ed approved status at the same time Celotex published and
circulated its current Approved Roofer list, from which
Olympia had been excluded. 42 Celotex had produced
42 Olympia’s Second Amended Pretrial Statement, §€47, 49.
A-26
sworn affidavits denying the existence of any conspiracy
between it and Standard. 43 Olympia has produced nothing
in response thereto to create a triable issue of fact on the
claim. The Fifth Circuit has consistently held that sum-
mary judgment is appropriate where a plaintiff rests on its
mere allegations and fails to produce substantial evidence
showing the existence of a genuine issue of fact, as required
by Rule 56(e) of the Federal Rules of Civil Procedure. See
e.g., Parsons v. Ford Motor Co., cert. denied, 459 U.S. 832.
669 F.2d 308, 313 (5th Cir. 1982); Southern Concrete Co. v.
United States Steel Corp., 535 F.2d 313, 318 (5th Cir. 1976);
Solomon v. Houston Corrugated Box Co., 526 F.2d 389,
395-397 (5th Cir. 1976); Scranton Construction Co. v. Litton
Industries Leasing Corp., 494 F.2d 778, 782 (5th Cir. 1974),
cert. denied, 419 U.S. 1105 (1975). Considering the several
years of the pendency of this litigation, ‘‘[t]he mere hope
that evidence may turn up to support a conspiracy does not
suffice to warrant a trial.’’ Bougeois v. A.B. Dick Co., 386
F.Supp. 1094, 1097 (W.D. La. 1974).
III. Motion of Standard for Summary Judgment
For the reasons set forth relative to Olymipa’s mo-
tion for summary judgment, Standard’s motion should,
likewise, be granted. We shall not belabor and reiterate
these reasons. However, we note certain additional points
warranting summary judgment in favor of Standard.
A. Monopolization and Attempted Monopolization
Subparts II B, C and D are incorporated herein by
reference. Additionally, the affidavit of Pierre F. Carriere
further supports the conclusion that the relevant markets
have not been accurately or sufficiently defined by Olym
43 Brassher Affidavit 44 7, 34; LeGrow Affidavit qq 16-19.
A-27
pia. Olympia’s reliance upon gross sales solely to New
Orleans roofers necessarily assumes that the market for
roofing jobs in New Orleans is restricted to roofing contrac-
tors actually located in New Orleans, and further assumes
that those contractors who are located in New Orleans do
not perform jobs outside the New Orleans area. Both of
these assumptions are unsupported by the facts and
evidence, and are specifically refuted by the affidavit of Mr.
Carriere. That affidavit indicates that although Standard
is and always has been located in New Orleans, it has done
extensive business throughout the State of Louisiana, and
in the adjoining States of Mississippi and Texas, as well as
in Georgia. Accordingly, the figures which Olympia has
compiled as to Standard’s purchases from Celotex and
Johns-Manville include purchases by Standard not only for
work which Standard performed in the New Orleans area,
but also for work which Standard performed throughout
Louisiana and in other states. As is further indicated and
unrefuted by Carriere’s affidavit, non-local roofing contrac-
tors constitute a significant segment of competitors in the
New Orleans area. Yet, this fact has been ignored by Olym-
pia in delineating the relevant geographic markets and in
its allegations of market share.
B. Price Discrimination
Subpart II E is incorporated herein by reference.
Furthermore, Standard has established, based upon
unrefuted evidence, that it legitimately shopped for the
best available price on roofing materials, and that it never
received a price known or believed to be improper or
discriminatory against a competitor. 44 In order to defeat
summary judgment, Olympia would have had to come for-
ward with evidence to create an issue of fact in this regard.
This, Olympia has not done.
44 Affidavit of Pierre F. Carriere.
A-28
Accordingly, and for the foregoing reasons, it is ordered
that the motions of defendants for summary judgment,
dismissing plaintiffs’ claims, be and they are hereby
GRANTED. The clerk of court is directed to enter judg-
ment in Accordance herewith.
New Orleans, Louisiana, this 9th day of Novermber,
1984.
s/ _ Illegible
UNITED STATES DISTRICT JUDGE
A-29
APPENDIX B
OLYMPIA COMPANY, INC. AND
Olympia Roofing Company, Inc.,
Plaintiffs-Appellants,
V.
The CELOTEX CORPORATION, et al.,
Defendants-Appellees.
No. 84-3850
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Sept. 23, 1985.
Roofing contractor brought antitrust suit against
materials supplier and against contractor’s competitors
alleging monopolization, price discrimination, and product
tying, and seeking treble damages. The United States
District Court for the Eastern District of Louisiana,
Charles Schwartz, Jr., J.. 597 F.Supp. 285 entered sum-
mary judgment against roofing contractor, and appeal was
taken. The Court of Appeals, Robert Madden Hill, Circuit
Judge, held that: (1) roofing contractor, which did not pro-
duce any evidence tending to show ‘antitrust injury”’
beyond evidence of price difference, could not recover in
suit under section 4 of Clayton Act, and (2) defendants were
entitled to award of expenses, attorney fees, and double
costs against roofing contractor and its appellate counsel
for frivolous appeal.
Affirmed and remanded.
A-30
Appeals from the United States District Court for
the Eastern District of Louisiana.
Before REAVLEY, TATE and HILL, Circuit
Judges.
ROBERT M. HILL, Circuit Judge:
Appellants brought this antitrust action alleging
claims of monopolization and attempted monopolization,
unreasonable restraint of trade, price discrimination, and
product tying. We affirm the district court’s entry of sum-
mary judgment for the appellees, 597 F.Supp. 285, and
because this appeal is so clearly frivolous, we assess ex-
penses, attorneys’ fees, and double costs against the ap-
pellants and their appellate attorney.
1. PROCEDURAL
BACKGROUND AND FACTS
We note initially that for puposes of a motion for sum-
mary judgment all facts and inferences must be viewed in
the light most favorable to the party opposing the motion.
United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993,
994 8 L.Ed.2d 176 (1962). Summary judgment evidence is
generally composed of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
any supporting affidavits. Fed.R.Civ.P. 56(c). Here, the
district court ordered the parties to consolidate all factual
contentions, claims for relief, defenses, and other affir-
mative matters in respective pretrial statements. The court
specified in its order that any such matters not set forth in
the pretrial statements would be deemed abandoned or
withdrawn. We therefore evaluate the facts and conten-
tions of the parties as reflected in the pretrial statements.
A-31
Appellants, Olympia Company, Inc., and Olympia
Roofing Company, Inc., (hereinafter jointly referred to as
Olympia) engaged in the business of securing roofing jobs
and furnishing roofing services within the New Orleans
area. In doing so, Olympia purchased roofing materials
from appellee the Celotex Corporation (Celotex) and its
business predecessors. Among Olympia’s competitors were
appellees Standard-Taylor Industries, Inc., (whose chief ex-
ecutive officer was appellee Robbins Taylor) and Standard
Roofing Company of New Orleans, Inc., (whose chief ex-
ecutive officer was appellee Pierre F. Carriere) (hereinafter
all such entities and individuals are jointly referred to as
Standard).
For several years, Olympia was on Celotex’s approved
roofers list. This enabled Olympia to secure a Celotex roof-
ing bond for any roof that was installed and repaired by an
approved roofer using Celotex’s materials in accordance
with Celotex’s specifications. According to Olympia, such
roofing bonds were required by architectural specifications
for virtually all lai ge commercial roofing jobs, and by 1974
Celotex’s roofing bonds were superior to those offered by
competing suppliers of roofing materials in the New
Orleans area.
Due to a dispute over credit terms, Celotex deleted
Olympia from the list of approved roofers entitled to
Celotex roofing bonds. According to Olympia, Celotex
thereafter refused to deal with Olympia on the same terms
offered Standard. Celotex continued to sell roofing supplies
to Standard and to offer to Standard the Celotex roofing
bonds. Olympia alleged that Standard was granted lower
prices on certain materials by Celotex than those granted
to Olympia, with an overall price differential of five per-
cent. Olympia further alleged that Celotex obtained a domi-
nant position in the relevant market, enjoying a more than
A-32
sixty percent market share.
Olympia filed this action in 1976. As consolidated in
its pretrial statement, Olympia allegations were that
Celotex and Standard committed the following violations
of the antitrust laws: (1) monopolization and attempted
monopolization of the relevant markets, (2) unreasonable
restraint of trade within the relevant markets, (3) unlawful
price discrimination, and (4) unlawful tying of the fur-
nishing of roofing bonds to the sale of roofing materials.
Olympia’s pretrial statement implied that Celotex and
Standard conspired, but there was no specific allegation to
that effect. Olympia sought treble damages under section
4 of the Clayton Act, 15 U.S.C. § 15.
The ensuing litigation had an extended history in the
district court, as evidenced by eleven volumes of record and
six boxes of exhibits. During the four years following 1976,
the case produced extensive discovery, several amend-
ments to the complaint, a number of changes in Olympia’s
counsel and numerous extensions and continuances. On
January 7, 1980, Celotex’s and Standard’s motions for
summary judgment were ordered continued to allow Olym-
pia another change of counsel for the purpose of clarifying
the issues. It was on June 17, 1980, that the district court
ordered the parties to file pretrial statements relating all
facts and legal contentions. The Court accepted Olympia’s
pretrial statement, although it was filed over four months
late and subsequently amended twice.
The district court entered summary jmudgment for
Celotex and Standard on all of Oiympia’s claims. The ac-
companying exhaustive opinion found that Olympia failed
to produce evidence of antitrust injury or damages, and
that Olympia failed to produce evidence to establisn two or
more necessary elements of each of the substantive claims.
A-33
Olympia appealed and again changed attorneys. Addi-
tionally, Olympia has filed a ‘‘Motion to Include Material
Into the Appeal Record not Presented to District Court.’
Finally, Celotex and Standard request that this court im-
pose sanctions against Olympia and its appellate counsel
for filing a frivolous appeal.
II. REQUIREMENT OF INJURY
AND DAMAGES
[1-3] Section 4 of the Clayton Act limits treble
damages to a private litigant ‘“‘who shall be injured in his
business or property by anything forbidden in the antitrust
laws.”’ 15 U.S.C. § 15. Such a plaintiff must prove not only
an antitrust violation, but also ‘‘cognizable injury at-
tributable to the violation, and... at least the approximate
amount of the damage.”’ Chrysler Credit Corp. v. J. Truett
Payne Co. Inc., 670 F.2d 575, 579 (5th Cir.), cert. denied.
459 U.S. 908, 103 S.Ct. 212, 74 L.Ed.2d 169 (1982). In par-
ticular, the plaintiff must prove “‘antitrust injury, which is
to say injury of the type the antitrust laws were intended
to prevent and that flows from that which makes defen-
dants’ acts unlawful.’’ Brunswick Corp. v. Pueblo Bowl-O-
Mat, Inc. 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d
701 (1977) (emphasis in original). Injury is required in sec-
tion 4 actions regardless of the nature of the underlying an-
titrust violation. See Bayou Bottling, Inc. v. Dr. Pepper
Co., 725 F.2d 300, 304-05 (5th Cir.) cert. denied, — U.S. —,
105 S.Ct. 123, 83 L.Ed.2d 65 (1984) (monopolization, at-
tempted monopolization, conspiracy in restraint of trade);
Chrysler Credit Corp., 670 F.2d at 579 (price discrimina-
tion); Cash v. Arctic Circle, Inc.,85 F.R.D. 618, 622
(E.D.Wash.1979) (tying). While summary judgment is to be
used cautiously in complex antitrust litigatiion, it is never-
theless available where no antitrust injury or damages
have been presented. See Bayou Bottling, 725 F.2d
at 303-05.
Olympia’s theory of antitrust injury can be easily
summarized. In its pretrial statement, the only element of
injury or damages that Olympia attempted to identify and
quantify was that attributable to the alleged price
discrimination. Olympia stated that had it received the
same five percent price reduction that Standard allegedly
received, it would have made an increased profit of
$38,157.65 from 1972 to 1976, and its sales would have in-
creased by forty percent. However, in its pretrial statement
Olympia failed to point to any evidence that would bear out
this calculation. Instead, Olympia ‘‘propose[d] to offer pro-
of of damages using this basic methodology and employing
a ten year ‘straightline’ projection of sales and loss [sic] net
profits for a ‘future’ period of ten years from and after
1976.’’ Olympia on appeal has not presented any different
theory of injury or damages, nor does it cite to any
evidence that it contends creates a dispute of fact.
[4] We agree with the district court’s finding that
Olympia’s ‘‘claim of injury and for damages amounts to
nothing more than unsupported assumptions, conclusory
allegations, and undocumented hypotheses.’ Olympia has
not produced any evidence tending to show antitrust in-
jury beyond evidence of price difference. It states in its
briefs, without any accompanying explanation, that af-
fidavits that it filed in 1979 were sufficient to avoid sum-
mary judgment, but these materials contain no informa-
tion relevant to injury or damages.! Olympia’s proposed
methodology is insufficient to survive a summary judg-
Olympia summarized its argument by claiming that ‘‘countervailing
affidavits’ filed in 1979 were sufficient to avoid summary judgment.
These allegations were abandoned to the extent Olympia (failed to in-
clude them in the pretrial statement, and in any event the materials
Olympia referred to contain no information relevant to the issues of in-
jury and damages.
A-35
ment motion absent allegations of, and evidence to sup-
port, the fact of injury, which are not to be found in this
voluminous record. Because Olympia apparently chose to
rest upon its pleadings on this issue rather than substan-
tiate its claims with evidence, summary judgment is per-
missible. See Fed. R. Civ.P. 56(e). Since Olympia created no
genuine issue of the material matters of injury and
damages, and since Celotex and Standard were entitled to
judgment as a matter of law, the district court’s entry of
summary judgment was appropriate. See Fed.R. Civ.P.
56(c).
[5] Moreover, evidence of price discrimination is not,
by itself, adequate evidence of damages. ‘‘[P]roof of a [price
discrimination] violation does not mean that a disfavored
purchaser had been actually ‘injured’ within the meaning
of § 4”’ of the Clayton Act. J. Truett Payne Co. v. Chrysler
Motors Corp., 451 U.S. 557, 562, 101 S.Ct. 1923, 1927, 68
L.Ed.2d 442 (1981). ‘Price difference without more does
not indicate the amount of lost sales or profits.’’ Chrysler
Credit Corp., 670 F.2d at 582. Olympia cannot rely on
‘‘mere speculation and guesswork’’ to substantiate its
damages. See id. Olympia’s bare projection of future pro-
fits is insufficient to meet its evidentiary burden. Any coin-
cidental financial problems Olympia may have suffered at
the time the alleged price discrimination occurred is not by
itself enough to demonstrate antitrust injury. See id. at
581-82.
[6] Even if Olympia had been able to factually
substantiate its claims, its theory of damages would be
unacceptable. Olympia may not base its damage claim on
calculations showing what would have occurred had it
received an allegedly discriminatory price. See M.C.
Manufacturing Co., Inc. v. Texas Foundries, 517 F.2d 1059,
1063-65 (5th Cir. 1975), cert. denied, 424 U.S. 968, 96 S.Ct.
1466, 47 L.Ed.2d 736 (1976). Instead, Olympia must show
A-36
what would have happened had there been no
discriminatory prices granted to Standard. Jd. at 1064.
Olympia cannot show damages merely by stating that it
would have benefited by sharing in the lower,
discriminatory prices with Standard. This is because
(rlestoration of the competitive freedom which
the Sherman Act is designed to protect through
elimination of the anti-competitive practice is ac-
complished here by disregarding the special con-
spiratorial price . . ., not by hypothetical broaden-
ing of the conspiracy to give [the defendant
buyer's] abnormally low price to [the plaintiff] as
well.
)
Id. at 1065.¢
Ill. FRIVOLOUS APPEAL
[7] Standard and Celotex request the award of
damages and double costs as sanctions against Olympia
and its attorney for the filing of a frivolous appeal. Such an
award may be made against an appellant under 28 U.S.C.
§ 1912 and Fed.R. App.P. 38, and against an attorney
under 28 U.S.C. § 1927.2 See Hagerty v. Succession of
¢ Olympia also makes the frivolous argument that a recently passed
Louisiana statute, La.Rev.Stat.Ann. § 39:1963(C) (West Supp. 1985),
shows a five percent price differential to be a ‘devastating advantage.
This statute requires certain public contracts be awarded to minority
business that bid within five percent of the lowest bidder. How this
statute can show that Olympia suffered any damage escapes us
398 U.S.C. § 1927 entitled Counsel Liability for Excessive Costs
provides:
Any attorney or other person admitted to conduct cases in any court
of the United States or any Territory thereof who so multiplies the
A-37
Clement,749 F.2d 217, 221-22 (5th Cir.1984). A frivolous
appeal is one which “‘involves legal points not arguable on
their merits.”’ Jd. at 222 (citing Howard v. King, 707 F.2d
215, 220 (5th Cir.1983)). Sanctions against Olympia’s ap-
pellate counsel are available if he has acted ‘‘unreasonable
and vexatiously”’ to multiply the proceedings in this case.
See 28 U.S.C. § 1927.
[8] We have no difficulty in concluding that Olympia
and its appellate counsel should be jointly assessed the
sanctions of expenses, attorneys’ fees, and double costs in
connection with this appeal. Olympia has failed to produce
any evidence oi antitrust injury and its theory of damages
has been expressly rejected by this Court in prior case law.
Olympia’s appellate counsel had made virtually no effort to
point to evidence raising a genuine issue of material fact.
His rambling briefs include citations to affidavits in the
record which have little to do with the issues in this case,
and which are unaccompanied by any explanation of what
relevant evidence the cited affidavits supposedly contain.
Additionally, Olympia’s appellate counsel made no
attempt to address most of the issues raised in the district
court's opinion. While we realize that the lack of damages
or injury was enough to dispose of Olympia’s action, we
(Footnote 3 continued)
proceedings in any case unreasonably and vexatiously may be re-
quired by the court to satisfy personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because of such conduct.
28 U.S.C. § 1912 entitled Damages and Costs on Affirmance
provides:
Where a Judgment is affirmed by the Supreme Court or a court of ap-
peals, the court in its discretion may adjudge to the prevailing party
just damages for his delay, and single or double costs.
Rule 38 of the Federal Rules of Appellate Procedure entitied
Damages for Delay provides:
If a court of appeals shall determine that an appeal is frivolous, it
may award just damages and single or double costs to the appellee.
,
A-38
note that Olympia did not address enough of the requisite
elements to obtain reversal on any of its substantive
claims.’ Instead, Olympia’s appellate counsel’s main con-
cern appears to be the possibility of succeeding in a future
malpractice action against one of Olympia’s prior at-
torneys. Olympia also calls on this court to, among other
things, stay bankruptcy proceeding against a non-party in
order to allow deposition of one of its employees, although
it fails to explain how or why we should take such action.
Many, if not most, of Olympia’s arguments are similarly
puzzling and exasperating. We are hard pressed to imagine
a more meritless, vexatious, or unreasonable appeal.
We therefore grant the appellees’ requests for ex-
penses, attorneys’ fees, and double costs against Olympia
and its appellate counsel. However, rather than our deter-
mining the amount of expenses and attorney's fees incur-
4 Aside from the issue of damages, the district court dismissed Olym-
pia's claims on the following grounds:
Monopolization: no adequate evidence of the relevant market, no
evidence that Celotex possessed monopoly power, and no evidence
that the alleged monopoly resulted from actions of Celotex, rather
than those of its competitors; Attempted monopolization: no
evidence of intent and no evidence of relevant market;
Price discrimination: no evidence of discriminatory prices, no
evidence that alleged discrimination had a substantial effect on com-
petition, no evidence that alleged price differences were not simply
good faith attempts to meet competitors’ prices, and no evidence that
Standard was aware of any discrimination; Tying: the allegedly tied
products were not separate products; and
Conspiracy to restrain trade: no evidence of conspiracy.
Olympia’s arguments on appeal are very difficult to decipher, but
the only issues other than damages that it expressly addresses are rele-
vant market, the existence of price differences, and conspiracy. As to
the latter, Olympia makes no attempt to point to evidence that a con-
spiracy existed. We do not reach the substantive claims and express no
opinion thereon, but we note these issues to illustrate the frivolousness
of the appeal.
A-39
red by appellees in this appeal, we remand to the district
court for such determination. See Hagerty, 749 F.2d at 223:
Lewis v. Brown & Root, Inc. 722 F.2d 209, 210 (5th Cir.),
cert. denied, — U.S. —, 104 S.Ct. 975, 79 L.Ed.2d 213
(1984).
IV. SUMMARY
We affirm the district court’s entry of summary
judgment for the appellees. Due to the frivolous nature of
this appeal, we grant appellees’ requests to assess ex-
penses, attorneys’ fees, and double costs jointly against
the appellants and their appellate counsel. We remand this
case to the district court for a determination of the amount
of expenses incurred on appeal and appellees’ appellate at-
torneys’ fees.
Judgment AFFIRMED: REMANDED for assess-
ment of expenses and attorneys’ fees.
A-40
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Feb 19-'86
OLYMPIA COMPANY, INC. ET AL CIVIL ACTION
VERSUS NO. 76-373
THE CELOTEX CORPORATION ET AL SECTION “‘A”’
JUDGMENT
Considering the Court’s Order and Reasons dated
February 13, 1986, accordingly:
IT IS ORDERED, ADJUDGED, AND DECREED,
that the Court awards recovery for 109.5 hours of attorney
work at $100.00 per hour, or $10,950.00; 7.5 hours of
paralegal work at $20.00 per hour for a total of $150.00 and
costs in the amount of $437.86, for a total of $11,537.86
with interest to run from date of judgment.
New Orleans, Louisiana, this 18th day of February,
1986.
/s/ Loretta G. Whyte
LORETTA G. WHYTE, CLERK
APPROVED AS TO FORM:
/s/Charles Schwartz, Jr.
UNITED STATES DISTRICT JUDGE
DATE OF ENTRY FEB 19 1986
A-4]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FEB. 4 ‘86
OLYMPIA COMPANY INC., ETAL CIVIL ACTION
VERSUS NO. 76-0373
THE CELOTEX CORPORATION, ET ALSECTION ‘“‘A”’
ORDER & REASONS
SCHWARTZ, J.
This matter is before the Court upon remand from
the Fifth Circuit Court of Appeals for a determination of
the amount of expenses, attorneys’ fees and costs to be
awarded to defendants in light of the Appellate Court Opi-
nion of September 23, 1985. A hearing was held on January
22, 1986, at which time the Court heard argument upon the
submissions of defendant Celotex Corporation under Local
Rule 21.16. For the reasons explained more fully below, the
Court finds that defendant Celotex is entitled to a total
award of $11,537.86 representing its expenses and at-
torneys’ fees incurred in connection with the appeal in this
matter.
In making its determination s to the quantum of
recovery herein, the Court is bound by the Fifth Circuit’s
decision in Johnson v. Georgia Highway Express, Inc., 488
F.2d 714 (5th Cir. 1974). Accordingly, the Court will ad-
dress each of the Johnson factors for awards of attorney's
fees in the order set forth in that decision:
(1) The Court first considered Celotex’s claims for
recovery of a total of 117.75 hours work in connection with
DATE OF ENTRY Feb 16 1986
A-42
the appeal. The Court has carefully reviewed the time
records submitted by the defendant and concludes that
defendant is entitled to recover fees pertaining to 117 hours
of the amount claimed. In making this determination, the
Court has discounted .75 hours claimed for review of the
work performed by the trial attorney for Celotex, Mr.
Frazier, by another member of his firm. The Court finds
such review to have been an unnecessary duplication of ef-
fort. At the same time, the Court finds reasonable Mr.
Frazier’s fee of $100.00 per hour, particularly in light of
Mr. Frazier’s ten years experience in practice and in light
of amounts charged by other attorneys in the city.
Included within the 117 hours, is the allowance of 7.5
hours work done by a paralegal employed by Mr. Frazier’s
firm. A review of the time records submitted by Celotex
shows the paralegal work encompassed primarily organiza-
tional and court run duties, in contrast to Mr. Frazier’s
time spent drafting the brief to be submitted to the Fifth
Circuit and preparing and attending argument in connec-
tion with the appeal. Thus, the paralegal work will be
recoverable in the amount of $20.00 per hour, instead of the
$35.00 per hour amount claimed by defendant Celotex.
(2) The instant matter was an anti-trust claim alleg-
ing monopolization, price discrimination and product ty-
ing. While such issues are not new to the courts, they are
difficult, and proper evaluation and presentation of the fac-
tual setting and legal theories inherent in such claims re-
quire time and expertise. Accordingly, the Court finds the
amount of time devoted to the appeal proportionate to the
difficulty of the issues inherent in the litigation.
(3) As indicated above, litigation of this type does re-
quire certain skill to perform the legal service properly, as
does the presentation of briefs and argument to the Fifth
A-43
Circuit Court of Appeal. This Court has also observed Mr.
Frazier’s demeanor at the hearings and finds his fee to be
reasonable in light of his expertise.
(4) There has been no showing or argument that other
employment was precluded due to the acceptance of this
case. Accordingly, no particular premium for or considera-
tion of this factor is warranted.
(5) The Court finds Mr. Franzier’s fee reasonable and
within the range of customary fees charged in a New
Orleans community. However, the Court finds the $35.00
per hour fee claimed for paralegal services excessive in this
case, where there was no showing of any special expertise
by the paralegal nor any showing as to her salary and cost
to the firm. Accordingly, the Court has taken judicial
cognizance that paralegals in the New Orleans community
may earn anywhere between $14,000 and $26,000 annually,
with an approximate hourly salery of $10.00-$18.00 per
hour. Thus, the Court concludes that the actual cost of
paralegal employment to a firm in this community approx-
imates $20.00 per hour, giving some leeway for benefits af-
forded the paralegal as part of his or her employment. The
Court does not deem it appropriate to award a iaw firm the
same profit margin for the services of a paralegal as a firm
would be entitled for the services of a lawyer. Accordingly,
the amount awarded for paralegal services is reduced from
the claim of $35.00 per hour to $20.00 per hour.
(6) Consideration whether the fee is fixed or con-
tingent in this case is rendered academic by the charge to
the client of a fee on an hourly basis which this Court finds
reasonable. In addition, the fee in this case must be
evaluated from a defense standpoint, in light of customary
hourly billing for defense work.
A-44
(7) The Court does not find any particular premium
necessitated by any time limitations imposed by the client
or the circumstances and accordingly, limits recovery to a
reasonable fee for the actual hours of work recorded.
(8) Plaintiff demanded one million dollars for actual and tre-
ble damages under state and federal anti-trust laws.
Celotex obtained a dismissal of plaintiff's claims. These
considerations generally support the Court’s determina-
tion that the hours invested by Mr. Frazier were reasonable
and the charge for those hours was likewise reasonable.
(9) The Court finds Mr. Frazier’s hourly fee of
$100.00 per hour appropriate in light of his experience, as
discussed above.
(10) The undersirability of this case does not require
any special permium or consideration by this Court.
(11) Likewise, the Court does not find that the nature
and length of the professional relationship with the client
warrants any special consideration in this case.
(12) There has been no showing or discussion of
awards made in similar cases for appellate work alone.
However, on the basis of the Court’s experience, the Court
finds that the amount of time devoted by Mr. Frazier is
reasonable.
The statements submitted by Celotex also set forth
an expenditure of $613.36 in expenses. Of that amount,
$175.50 in costs has already been assessed against plaintiff
and in favor of Celotex by the Appellate Court. According-
ly, the Court awards to defendant additional costs in the
amount of $437.86. Plaintiff does not challenge the
reasonableness of these costs or their necessity as part of
defendant's preparation for the appeal.
A-45
For the foregoing reasons, the Court awards
recovery for 109.5 hours of attorney work at $100.00 per
hour, or $10,950.00; 7.5 hours of paralegal work at $20.00
per hour for a total of $150.00 and costs in the amount of
$437.86, for a total of $11,537.86 with interest to run from
date of judgment. The Clerk of Court is hereby ordered to
enter judgment accordingly.
New Orleans, Louisiana, this 13th day of February,
1986.
ae ees
UNITED STATES DISTRICT COURT
A-46
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Oct 12 -'88
OLYMPIA COMPANY, INC. CIVIL ACTION
OLYMPIA COMPANY, INC., ET AL
VERSUS NO. 76-373
THE CELOTEX CORPORATION ET AL SECTION “A”
MOTION AND ORDER FOR RELEASE OF EXHIBITS
NOW INTO COURT, through undersigned counsel,
comes Olympia Roofing Company, Inc., et al, and respect-
fully moves this Court to issue an Order to release for in-
spection and duplication to the petitioner herein upon a
signed custody receipt the exhibits submitted to resist
Summary Judgment in the above named and numbered
cause, said exhibits having been in storage and now in the
custody of the Clerk, United States District Court, Eastern
District of Louisiana
A Memorandum accompanies this Motion.
Respectfully submitted,
s/W. J. Manion
W. J. MANION
Attorney for Plaintiffs
P. O. Box 1776
Slidell, LA 70459
(504) 649-4000
A-47
ORDER
Presented for consideration and determination in
regards to plaintiffs’ Motion herein;
IT IS ORDERED that the Clerk of Court, United
States District Court, Eastern District of Louisiana,
release for inspection and duplication the exhibits filed
with this section upon custody receipt, and said exhibits
are to be returned to the Clerk of Court within 21 days from
the date of this Order.
New Orleans, LA, this 12th day of October, 1988.
/s/ illegible
DISTRICT JUDGE
CERTIFICATE
I certify that a copy of this Motion and Order will be
mailed to Jack N. Price, 410 Congress Avenue, Austin, TX
78701.
/s/ W. J. Manion
W. J. MANION
RECEIVED 5 BOXES OF EXHIBITS AS PER AT-
TACHED LISTS THIS 1/4 DAY OF OCTOBER, 1988.
BY: /s/ W. J. Manion
W. J. Manion, Esq.
DATE OF ENTRY OCT 17 1988
A-48
APPENDIX E
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Filed MAR 1 -1989
No. 84-3850
USDC #aCA 76-373 A
OLYMPIA COMPANY, INC. and
OLYMPIA ROOFING COMPANY, INC.,
Plaintiffs-Appellants:
versus
THE CELOTEX CORPORATION, ET AL.,
Defendants-Appellees
\npeals from the United States District Court for the
r
Eastern District of Louisiana
ORDER:
IT IS ORDERED that the motion of appellants to
recall the judgment of this Court has to remand the cause
to the district court for a new trial is DENIED.
THOMAS M. REAVLEY
UNITED STATES CIRCUIT JUDGE
A-49
APPENDIX F
OLYMPIA ROOFING CO., INC. CA-8909
OLYMPIA COMPANY, INC. TRAILER
TRUCK BODIES, PARTS COURT OF APPEAL
AND SERVICE, INC., ET AL
FOURTH CIRCUIT
VERSUS
C. ELLIS HENICAN, SR. AND STATE
LAW OFFICE OF HENICAN, OF
JAMES & CLEVELAND LOUISIANA
AN APPEAL FROM THE CIVIL DISTRICT COURT,
PARISH OF ORLEANS NO. 77-3453, DIVISION ‘“H”,
HONORABLE REVIUS O. ORTIQUE, JR., JUDGE
* * * * *€ * * K * K KX
WILLIAM H. BYRNES, III
JUDGE
* * * * * * * * K KK *
(Court composed of Judges William H. Byrnes, III, David R. M.
Williams, and Steven R. Plotkin)
OCT 11 1989
SESSIONS, FISHMAN, ROSENSON,
BOISFONTAINE, NATHAN & WINN
JACK M. ALLTMONT
New Orleans, Louisiana
Attorneys for Defendants-Appellees
W. J. MANION
P. O Box 1776
Slidell, Louisiana
Attorney for Plaintiffs-Appellants
AFFIRMED
—
A-50
Appellants, Olympia Company, Inc. Olympia Roof-
ing Company and Trailer Truck Body Parts and Service
Inc., brought this negligence action alleging that the
testimony of appellee, C. Ellis Henican, during a lawsuit
previously brought by Olympia Roofing Company, Inc.
against the City of New Orleans, caused the dismissal of
that lawsuit. We affirm the district court’s granting of ap-
pellees’ Motion for Summary Judgment. Further, because
we find this appeal to be frivolous we assess $2,500.00 as
damages, plus court costs, against appellants and their ap-
pellate attorney.
FACTS
This appeal arises out of two lawsuits filed by ap-
pellants. The first, filed in 1977, contained allegations by
appellants against Mr. Henican Concerning the allegedly |
false testimony he gave in an earlier suit brought by Olym-
pia Roofing Company Inc. against the City of New Orleans
and the UPT. It was alleged that, at the trial of this earlier
matter Mr. Henican testified that the proper name for the
plaintiff in that action was Olympia Company, Inc. not
Olympia Roofing Company, Inc. Subsequently, that suit
was dismissed for failure to name the proper party plain-
tiff. Appellants herein contend that the dismissal in the
earlier suit against the City was due to Mr. Henican’s
allegedly false testimony regarding the correct name of
Olympia. Rather than cure the relatively minor defect in
the prior suit by amending the petition or appealing the
judgment of dismissal, appellants instead filed suit in 1977
against Mr. Henican. With the exception of four amending
petitions the 1977 suit remained inactive for seven years
until Mr. Henican filed a Motion for Summary Judgment
in 1984. The Judge referred the Motion to the merits and
set the case for trial before a Commissioner on March 15,
1985. Prior to this trial date appellants filed a second suit
A-51
attempting to revive its previously dismissed claims
against the City and the UPT. The 1985 suit also realleged
the claims against Mr. Henican as an alternative to
recovery from the City and the UPT.
Both suits were apparently consolidated and in
March, 1987 Mr. Henican re-urged his previously filed Mo-
tion for Summary Judgment. The Motion was heard in
April, 1987 before a’ Commissioner. The Commissionier
recommended granting the Motion which recommendation
was adopted by the District Court on May 1, 1987. The
Judgment was amended, due to an apparent clerical error,
to reflect that the dismissal of appellants’ claims against
Mr. Henican was effective as to both the 1977 and 1985
suits, as consolidated. Appellants’ Motion for a New Trial
was denied and this appeal followed.
LAW
Louisiana Code of Civil Procedure Article 966(b) pro-
vides in pertinent part, as follows:
“The judgment sought shall be rendered for-
thwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, 1f any, show that there is no
genuine issue as to material fact, and that mover
is entitled to judgment as a matter of law."’ (em-
phasis added)
It is well settled that summary judgment should on-
ly be granted when reasonable minds must inevitably con-
cur that there exist no genuine issues of material fact.
Whitney v. Maltet, 442 So.2d 1361 (La. App. 3rd Cir. 1983),
writ den 445 So.2d 437. All reasonable doubts as to the pro-
priety of the summary judgment are to be resolved against
granting the motion and in favor of trial on the merits.
A-52
American Bank & Trust Co. v. Sunbelt Environmental
Systems, Inc., 451 So.2d 1111 (La. App. Ist. Cir. 1984);
Other v. Sharp ELectric, Inc., 451 So.2d 1235 (La. App. 4th
Cir. 1984). In considering the motion the trial court should
look to the pleadings, depositions and other documents of
record to determine the existence of a genuine issue of
material fact. Otter v. Sharp Electric, Inc., supra; Kerwin
v. Nu-Way Construction Service, Inc., 451 So.2d 1195 (La.
App. 5th Cir. 1984). Additionally, it has been held that one
purpose of the summary judgment is to dispose of frivolous
claims. Schaefer v. Lynch, 406 So.2d 185 (La. 1981).
Although summary judgments are not generally favored
we have reviewed few, if any, cases more deserving of sum-
mary disposition than the case at bar.
After sifting through appellants’ ‘‘brief’’ and
separating out the primarily superfluous and purely vindic-
tive statements it is abundantly clear that the only
material fact in this lawsuit concerns set out many other
supposedly material facts, it is solely the allegedly false
testimony of the attorney that forms the entire basis for
the case before this court.
William J. Manion, who is not only appellants’ at-
torney, but, also the President of Olympia Company, Inc.
testified unequivocally that as President of Olympia Com-
pany he had no quarrel with the way in which Mr. Henican
or his law firm handled Olympia’s corporate affairs. Ma-
nion testified further that the sole basis of the instant law
suit was Mr. Henican’s testimony at trial in 1976. (Manion
deposition at pp. 30-31, 33, 34 and 45-46).
Thus, the sole material fact concerns the content of
that testimony. The only question before us, then, for pur-
poses of determining the propriety of granting the sum-
mary judgment is whether this genuine issue was in
aerial
A-53
dispute. We find that it was not.
We do not have the transcript from the 1976 trial
before us. This is apparently due to Mr. Henican’s failure
to timely request same following the trial. The record
before us, however, contains sufficient evidence of Mr.
Henican’s testimony at that trail. As noted above, Mr. Ma-
nion testified that the proper party plaintiff to the earlier
lawsuit was Olympia Company Inc. and not Olympia Roof-
ing Company, Inc. Moreover, Mr. Henican does not dispute
that this was the content of his 1976 testimony. Clearly,
then, the actual content of Mr. Henican’s testimony is not
in dispute and therefore is not an issue of material fact.
Similarly, the record supports the finding that the veracity
of Mr. Henican’s testimony is likewise not in dispute.
The record contains copies of the annual reports of
“Olympia Company Inc.”’ encompassing the years
1972-1982. These reports were filed with the Secretary of
State and signed by Mr. Manion. Moreover, Mr. Manion
testified regarding the name change in 1969 from Olympia
Roofing to “‘Olympia Company, Inc.”’ and the fact that the
name was still ‘Olympia Company, Inc.”’ at the time of Mr.
Henican’s testimony. Mr. Manion specifically testified at
pp. 31-32 of his deposition, as follows:
‘‘Q. Let me ask you this. You filed with the court
an affidavit. It was filed May 25, 1978, and the af-
fidavit is four pages signed by you and dated May
24, 1978. Is this, in fact, your signature?
A. That’s my signature.
Q. And in that affidavit you appear to state that
subsequent to the name change of the company
March 27, 1969, that’s when it was changed to
Olympia Company, Inc.?
A. Yes.
dt
A-54
Q. There were discussions about changing the name back
to Olympia Roofing Company, Inc.
A. No question about that.
Q. But to your knowledge that was never done?
A. Never done.
Q. And you knew that was never done?
A. I had never been informed. I never signed any papers to
that effect.
Q. Had the name of the company ever been changed before
without you signing it?
A. No. I have said that I have no quarrel with that.”
Thus, it is clear that Mr. Henican testified truthfully
and accurately about the status of Olympia at the 1976
trial. Accordingly, we find there is no genuine issue of
material fact and therefore, summary judgment was
proper.
DAMAGES FOR FRIVOLOUS APPEAL
Appellees request that we award damages and costs
as sanctions against appellants for filing a frivolous appeal.
Louisiana Code of Civil Procedure Article 2164 provides:
“The appellate court shall render any judgment
which is just, legal and proper upon the record on
appeal. The court may award damages for
frivolous appeal; and may tax the costs of the
lower or appellate court, or any part thereof,
ee
A-55
against any party to the suit, as in its judgment
may be considered equitable.”’
In Parker v. Interstate Life & Accident Insurance Com-
pany, 248 La. 449, 179 So.2d 634, 637 (1965) the court held:
“(When counsel proclaims his sincerity, a court
finds itself without just cause to disbelieve
unless, and only unless, the proposition ad-
vocated is so rediculous or so oppossed to rational
thinking that it is evident beyond any doubt that
it is being deliberately professed for ulterior
purposes.”
See also, Rogers v. D’Hubin, 498 So.2d (La. App. 1st. Cir.
1986.) The instant appeal presents just such a case.
Mr. Manion and Olympia are no strangers to the
frivolous appeal. In Olympia Co. Inc. v. Cleotex Corp., 771
F. 2d 888, 893 (5th Cir. 1985) the court found that Cleotex
was entitled to damages for frivolous appeal and stated:
‘‘Olympia’s appellate counsel has made virtually
no effort to point to evidence raising a genuine
issue of material fact. His [Manion’s] rambling
briefs include citations to affidavits in the issue in
this case, and which are unaccompanied by any
explanation of what relevant evidence the cited
affidavits supposedly contain.
‘“Olympia’s appellate counsel’s main concern ap-
pears to be the possibility of succeeding in a
future malpractice action against one of Olym-
pia’s prior attorneys.
* * * *
Many, if not most, of Olympia’s arguments
A-56
are...puzzling and exasperating. We are hard
pressed to imagine a more meritless, vexatious or
unreasonable appeal."’ (emphasis added)
What was difficult to imagine for our Bretheren on the
Federal Bench has now come to pass.
As in Celotex the record before us contains rambling
briefs and unsupported allegations. Once again, Mr. Ma-
nion’s chief concern appears to be laying the groundwork
for some future malpractice action against one of Olym-
pia’s prior attorneys, Mr. Henican.
There is no dispute over the content of Mr. Henican’s
prior testimony. There is no evidence to support a dispute
over the veracity of that testimony. Yet, despite the
overwelming evidence, including Mr. Manion’s own
testimony, appellate put forth paragraph after paragraph
of meaningless and irrelevant allegations in a clear attempt
to cloud the issues. Therefore because there is no evidence
and law in dispute, this appeal is frivolous; entitling the ap-
pellees to damages for a new appeal.
Accordingly, we affirm the judgment of the trial
court and award $2,500.00 as damages plus costs of this
appeal.
AFFIRMED
COURT OF APPEAL, FOURTH CIRCUIT
STATE OF LOUISIANA
Clerk's Office, New Orleans, DEC 14 1988, 198__
DEAR SIR:
REHEARING WAS THIS DAY REFUSED IN THE CASE ENTITLED
OLYMPIA ROOFING CO., INC, ET AL VS C. ELLIS
HENICAN, SR., ET AL
No. CA-8908
;
}
;
3
;
i
:
A-57
APPENDIX G
MINUTE ENTRY
FEBRUARY 9, 1989
SCHWARTZ, J.
FILED
Feb 8 89
OLYMPIA COMPANY, INC. CIVIL ACTION
VS. NO. 76-373
THE CELOTEX CORPORATION, ET ALSECTION “A”
This matter is scheduled to come before the Court for
hearing on the motion of plaintiffs for new trial. The Court
is of the opinion no oral argument on the motion is
necessary and the matter is hereby taken under submission
without oral argument.
This Court dismissed plaintiffs’ claims on the merits
on motion for summary judgment and was affirmed by the
Fifth Circuit in 1985. See Olympia Co. v. Celotex Corp., 597
F. Supp. 285, Aff'd 771 F.2d 888 (5th Cir. 1985). the
gravamen of plaintiffs’ motion for new trial is contradic-
tory: On the one hand, plaintiffs allege they are entitled to
a new trial because certain documents were not properly
maintained under seal. On the other hand, plaintiffs allege
the government improperly restricted and made difficult
access to the documents in question.
The motion was apparently provoked by the return
of certain boxes of sealed documents to the plaintiffs with
the “seals broken’’. Plaintiffs also allege they were im-
properly denied access to their own documents in preparing
their appeal.
DATE OF ENTRY FEB 9 1989
A-58
As to the first contention, plaintiffs misperceive the
Clerk’s actions in maintaining documents ‘‘under seal’’. the
term ‘‘under seal’’ is a term of art, meaning only that the
documents in question are not maintained as a matter of
public record but are rather kept apart from the main
record in a vault or other location not readily accessible to
the public. the Clerk’s office does not place any type of of-
ficial wax or other seal on such documents, although it mav
from time to time tape boxes of documents closed. Thus,
the ‘“‘breaking of seals’’ on boxes has absolutely no
significance whatsoever.
Moreover, even accepting as true plaintiffs’ conten-
tion that none of the documents in question was entered in-
to evidence, holding documents for in camera inspection by
definition permits the Court to review in chambers any
such documents it deems necessary for the resolution of a
case. the same holds true for any reviewing JCourt. Such
in camera review is not limited to reading the documents in
the presence of counsel of record, but is accomplished
whenever the JCourt deems it necessary to read a docu-
ment. There has been no showing by the plaintiffs that any
person outside of Court and government personnel involv-
ed in processing and handling JCourt records has had ac-
cess to the documents in question. There has been no show-
ing that any party filed a motion for leave to review
documents held in camera and that such request was im-
properly granted.
Moreover, any matters inhibiting plaintiffs’ prepara-
tion of their appeal should have been called to the JCourt’s
attention four years ago. The Court is also at a loss to
perceive how the plaintiffs could have been prejudiced by
the Court’s holding their documents in storage, since the
documents presumably belong to the plaintiffs, and
presumably they as owners of the documents, would have
been aware of their contents.
A-59
The motion for new trial is accoringly DISMISSED as
frivolous. <
A-60
APPENDIX H
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
FILED
Apr 21 1989
No. 89-3181
OLYMPIA COMPANY, INC., and
OLYMPIA ROOFING COMPANY,
Plaintiffs-Appellants,
versus
THE CELOTEX CORPORATION, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern Distsrict of Louisiana
Before GEE, WILLIAMS and HIGGINBOTHAM, Cir-
cuit Judges.
BY THE COURT:
IT IS ORDERED that the motions of appellees
Celotex and Standard Roofing to dismiss the appeal and
for sanctions are GRANTED pursuant to Local Rule 42.2
and 28 U.S.C. § 1927. the cause is remanded to the district
court for the determination of an appropriate amount of at-
torneys fees, costs and expenses to be added to the award
of sanctions which we enter here and paid personally by
counsel for appellants, the Court having determined that
A-61
this entire proceeding constitutes an unreasonable and vex-
atious multiplication of litigation. And the Court having
noted that an earlier award of sanctions in the mamount of
$11,537.86 has not deterred appellant’s counsel from in-
stituting and persisting in this attempted resurrection of a
long-dead matter, the Court awards a sanction of Fifteen
Thousand Dollars in addition to the aforesaid § 1927 award
pursuant to Rule 11, F.R.C.P. It is so
ORDERED.
A-62
APPENDIX I
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
FILED
No. 89-3181
FILED
May 12 19889
OLYMPIA COMPANY, INC., and
OLYMPIA ROOFING COMPANY,
Plaintiffs-Appellants,
versus
THE CELOTEX CORPORATION, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court for the
Eastern District of Louisiana
ON PETITION FOR REHEARING
( May 12, 1989 )
Before GEE, WILLIAMS, and HIGGINBOTHAM, Cir-
cuit Judges.
IT IS ORDERED that the petition for rehearing filed
in the above entitled and numbered cause be and the same
is hereby DENIED.
ENTERED FOR THE COURT:
/s/ Illegible
United States Circuit Judge
A-63
APPENDIX J
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
GILBERT F. GANUCHEAU OFFICE OF THE CLERK _ TEL. 504-589-6514
CLERK 600 CAMP STREET
NEW ORLEANS, LA.70130
April 14, 1989
Mr. W. J. Manion
Attorney at Law
Slidell, LA 70459
No.
89-3181 - OLYMPIA CO., INC., ET AL., -vs -
THE CELOTEX CORP., ET AL.,
—
| An examination of your brief reveals that it fails to
a contain or comply with the following rules:
a Certificate of Interested Persons (Loc.R.
28.2.1)
LI Statement Regarding Oral Argument
(Loc.R. 28.2.4)
Lo Summary of Argument (Loc.R. 28.2.2)
Certificate of Interested Persons does not
comply with the intent of the Rule in that
counsel are required to certify a complete list
of all parties of interest on both sides of the
case.
CJ
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.