Revised May 1, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-60840
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LAKE HILL MOTORS, INC.,
Plaintiff-Appellant,
v.
JIM BENNETT YACHT SALES, INC.; JIM BENNETT;
SCOTT WALL; ROBERT EWING; GENE HILL; JOHN DOES 1-10;
YAMAHA MOTOR CORPORATION, USA; YAMAHA MOTOR CO., LTD.,
Defendants-Appellees.
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Appeal from the United States District Court
For the Northern District of Mississippi
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April 13, 2001
Before REYNALDO G. GARZA, DAVIS, and JONES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Lake Hill Motors, Inc. sued Jim Bennett Yacht Sales, Inc., its
owner Jim Bennett (whom we refer to together as Jim Bennett),
Yamaha Motor Co., Ltd., its subsidiary Yamaha Motor Corporation,
USA, certain employees of Yamaha Motor Co., Ltd. (whom we refer to
together as Yamaha), and other unnamed dealers of Yamaha products
for violations of the federal antitrust laws as well as violations
of Mississippi law. The district court granted summary judgment to
all the defendants on the antitrust claims and one state law claim
and dismissed the remaining state law claims without prejudice.
Finding no genuine issues of material fact concerning Lake Hill’s
antitrust claims, we affirm the judgment of the district court.
I.
Yamaha manufactures a variety of boats and motors, including
a line of one- to three-person motorized pleasure craft designed
for use on open water. Yamaha competes with several other
manufacturers in the market for these personal watercraft. Yamaha
sells its products to consumers through a network of independent
dealers.
Both Lake Hill and Jim Bennett are dealers of Yamaha personal
watercraft. Lake Hill is located in Corinth, Mississippi and Jim
Bennett in Iuka, Mississippi, about fifteen miles away. Because of
their proximity, Lake Hill and Jim Bennett compete with each other
in the sale of Yamaha personal watercraft. Lake Hill’s Yamaha
dealership is nonexclusive and does not require Lake Hill to sell
Yamaha products to consumers at or above any particular price.
In December of 1997 Lake Hill filed this lawsuit. It first
alleged that Jim Bennett, Yamaha, and certain other unnamed dealers
of Yamaha personal watercraft conspired to fix the minimum resale
price of Yamaha personal watercraft, and to terminate Lake Hill as
a Yamaha dealer for charging less than that fixed price, in
violation of § 1 of the Sherman Act, 15 U.S.C. § 1. Lake Hill next
alleged that Yamaha’s cooperative advertising program, which
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reimbursed dealers for advertising only when that advertising
stated either Yamaha’s suggested retail price or no price, violated
§ 1 of the Sherman Act.1 Lake Hill next alleged that Yamaha
monopolized the market for personal watercraft in Mississippi,
Tennessee, and Alabama in violation of § 2 of the Sherman Act, 15
U.S.C. § 2. Finally, Lake Hill alleged that the defendants
committed various violations of Mississippi law. Lake Hill sought
an injunction under § 16 of the Clayton Act, 15 U.S.C. § 26, to
prevent Yamaha from terminating its dealership, as well as money
damages under § 4 of the Clayton Act, 15 U.S.C. § 15.
Both Yamaha and Jim Bennett moved for summary judgment on the
three antitrust claims after the conclusion of discovery. The
district court subsequently granted summary judgment to both Yamaha
and Jim Bennett on all the antitrust claims. The district court
held that Lake Hill had alleged a horizontal conspiracy to fix
prices amongst Jim Bennett and other unnamed Yamaha personal
watercraft dealers. However, as Lake Hill had not identified any
1
The third count of Lake Hill’s complaint in fact alleges that
the conspiracy to fix minimum resale prices between Yamaha, Jim
Bennett and the other unnamed Yamaha dealers violated § 1 of the
Sherman Act under a rule of reason analysis. Based on the
arguments submitted by Lake Hill in response to Yamaha and Jim
Bennett’s motions for summary judgment, the duplication in Lake
Hill’s complaint, and the fact that resale price maintenance
agreements are per se unlawful, see Business Elec. Corp. v. Sharp
Elec. Corp., 485 U.S. 717, 724, 108 S.Ct. 1515, 99 L.Ed.2d 808
(1988), the district court construed the third count of Lake Hill’s
complaint as concerning Yamaha’s cooperative advertising program.
We do the same given Lake Hill’s arguments about the program in
this appeal.
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dealer other than Jim Bennett as a member of this conspiracy, it
failed to show that there was any conspiracy to fix prices amongst
Yamaha personal watercraft dealers. The district court held in the
alternative that Lake Hill had failed to make any showing that it
had been injured as a result of this purported conspiracy.
The district court held, regarding Yamaha’s cooperative
advertising program, that Lake Hill failed to make any showing that
the program harmed competition in the market for personal
watercraft in any way. As to Lake Hill’s § 2 claim, the district
court again held that Lake Hill had failed to produce any proof of
a conspiracy that had harmed Lake Hill. Having granted Yamaha and
Jim Bennett summary judgment on the three antitrust claims, the
district court also granted Yamaha and Jim Bennett summary judgment
on Lake Hill’s Mississippi law claim for restraint of trade. The
district court then dismissed the remainder of Lake Hill’s
Mississippi law claims without prejudice.
Lake Hill then moved for reconsideration on the grounds of
newly discovered evidence and filed an affidavit in support of the
motion. The district court denied the motion on the ground that
the evidence had been available to Lake Hill before it ruled on
Yamaha and Jim Bennett’s motions for summary judgment so that the
evidence was not submitted timely. Lake Hill then took this
appeal.
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II.
We review the district court’s grant of summary judgment de
novo. Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d
320, 324 (5th Cir. 1998). Summary judgment is appropriate, “if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Id. at 324-25.
Before reaching the merits of Lake Hill’s arguments, we first
note that Lake Hill has not argued on appeal that the district
court erred in granting summary judgment against it on its § 2
claim or in dismissing its other Mississippi law claims. As such,
we must consider those claims abandoned. Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993).
We begin with Lake Hill’s argument that Yamaha, Jim Bennett,
and other unnamed Yamaha dealers conspired to fix the minimum
resale price of Yamaha personal watercraft. Section 4 of the
Clayton Act provides that “any person who shall be injured in his
business or property by reason of anything forbidden in the
antitrust laws may sue therefor....” 15 U.S.C. § 15. A private
plaintiff must show some injury to his business or property which
results from some violation of the antitrust laws to recover
damages under § 4 of the Clayton Act. United Indus., Inc. v. Eimco
Process Equip. Co., 61 F.3d 445, 448 (5th Cir. 1995); McCormack v.
NCAA, 845 F.2d 1338, 1341 (5th Cir. 1988). Thus, even if the
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plaintiff can show some violation of the antitrust laws, they may
not recover under § 4 of the Clayton Act unless they can also show
that they have suffered some injury as a result of the violation.
Slowiak v. Land O’ Lakes, Inc., 987 F.2d 1293, 1296 (7th Cir.
1993); Isaksen v. Vermont Castings, Inc., 825 F.2d 1158, 1165 (7th
Cir. 1987). Likewise, a plaintiff seeking injunctive relief under
§ 16 of the Clayton Act can only obtain that relief when they show
a significant threat of some injury to their business or property
from a violation of the antitrust laws. McCormack, 845 F.2d at
1341; Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104,
113, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986) (holding that §§ 4 and 16
of the Clayton Act provide a complementary set of remedies).2
Lake Hill asserts that Yamaha, Jim Bennett and certain other
unnamed Yamaha dealers conspired to fix a minimum resale price for
Yamaha personal watercraft. If Lake Hill were able to prove such
a conspiracy between Yamaha and Jim Bennett, that conspiracy would
2
A showing of injury-in-fact by a plaintiff in an antitrust
action is in fact only a first step. The plaintiff’s injury must
also flow from the anticompetitive effect of the violation of the
antitrust laws which causes the plaintiff’s injury. That is, the
injury the plaintiff suffers must be antitrust injury. Brunswick
Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690,
50 L.Ed.2d 701 (1977). Because we find that Lake Hill has failed
to show that it suffered any injury at all, we need not consider
whether any injury it could suffer as a result of the violation it
has alleged would qualify as antitrust injury. See Pace Elec.,
Inc. v. Canon Computer Systems, Inc., 213 F.3d 118, 122-23 (3rd
Cir. 2000).
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be a violation of § 1 of the Sherman Act.3 See Monsanto Co. v.
Spray-Rite Serv. Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d
775 (1984) (setting forth what evidence is required to allow a
finding of a conspiracy to fix minimum resale prices between a
manufacturer and a dealer). Furthermore, the violation would be
per se, meaning that Lake Hill would not need to show any harm to
competition as a result of the conspiracy. Bus. Elec. Corp. v.
Sharp Elec. Corp., 485 U.S. 717, 724, 108 S.Ct. 1515, 99 L.Ed.2d
808 (1988). However, we need not consider whether Lake Hill
produced any evidence that would allow a reasonable trier of fact
to conclude that there was a conspiracy between Yamaha and Jim
Bennett, because Lake Hill has produced no evidence that would
allow a reasonable trier of fact to conclude that it was injured as
a result of this alleged conspiracy.
Almost all of the evidence Lake Hill submitted in response to
the summary judgment motions concerns the extent to which Jim
Bennett disliked and complained about other Yamaha dealers who sold
personal watercraft below Yamaha’s suggested retail price. Though
this may be relevant to showing an agreement between Yamaha and Jim
3
The district court read Lake Hill’s complaint as stating a
cause of action arising out of a horizontal conspiracy between Jim
Bennett and other Yamaha dealers. It was correct to note that Lake
Hill had not identified any of the other dealers who had conspired
with Jim Bennett in this alleged conspiracy. However, Lake Hill’s
complaint is better read as alleging a vertical conspiracy, that is
one between the manufacturer Yamaha, the dealer Jim Bennett, and
other unnamed dealers. To allege a vertical conspiracy to fix
minimum resale prices, Lake Hill need not identify anyone other
than Yamaha and Jim Bennett.
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Bennett, it shows nothing in the way of injury to Lake Hill. The
only evidence Lake Hill pointed to concerning possible injury to
itself as a result of the alleged conspiracy is found in the
deposition testimony of Jerry Dan McLemore, one of the principals
of Lake Hill. McLemore testified that he met with Scott Wall, a
Yamaha executive and one of the defendants in this lawsuit, at a
Yamaha dealers’ meeting in Dallas sometime during 1995. McLemore
said that Wall “raked [him] over the coals” for cutting prices
below Yamaha’s suggested retail price and threatened McLemore that
Lake Hill’s dealership would be terminated if Lake Hill’s prices
did not increase.
Though Wall may very well have threatened McLemore at the
meeting in Dallas in 1995, that fact is insufficient to show that
Lake Hill has been injured by any conspiracy between Yamaha and Jim
Bennett. Lake Hill was never terminated as a dealer after the
Dallas meeting and remains a Yamaha dealer to this day. Moreover,
Lake Hill has presented no evidence that it was otherwise
sanctioned by Yamaha in any way after the meeting in Dallas.
Neither has Lake Hill presented any evidence that it raised
its prices after the Dallas meeting to meet Yamaha’s alleged
threats. McLemore himself testified that every Yamaha personal
watercraft that Lake Hill sold from 1996 to 1998 was sold below
Yamaha’s suggested retail price. McLemore also admitted that any
sales that Lake Hill lost in the mid-1990s were due solely to
vigorous competition with Jim Bennett. Lake Hill has made no
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showing that it was injured in its business or property, and so has
no cause of action under § 4 of the Clayton Act.
Neither is Lake Hill entitled to injunctive relief under § 16
of the Clayton Act. Section 16 requires some threat of antitrust
injury to justify injunctive relief. A threat made sometime in
1995 and never acted upon before the filing of this lawsuit in
December of 1997 can not be said to be a genuine threat sufficient
to justify injunctive relief under § 16. In sum, whatever
conspiracy existed between Yamaha and Jim Bennett proved irrelevant
to Lake Hill, as Yamaha never did anything to Lake Hill in
furtherance of the conspiracy.
Yamaha and Jim Bennett were also entitled to summary judgment
on Lake Hill’s § 1 claim concerning Yamaha’s cooperative
advertising program. We have previously held that cooperative
advertising programs such as Yamaha’s are to be analyzed under the
rule of reason. In re Nissan Antitrust Litigation, 577 F.2d 910,
917 (5th Cir. 1978). Thus, Lake Hill must show not only that there
was some conspiracy, but also that the conspiracy harmed
competition, to show a violation of § 1 of the Sherman Act.
Business Elec., 485 U.S. at 723-25. Lake Hill has made no showing,
and indeed has not even attempted to make a showing, that Yamaha’s
cooperative advertising program harmed competition in the market
for personal watercraft. Jerry Dan McLemore in fact admitted in
his deposition that competition for the sale of personal watercraft
was fierce.
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III.
Lake Hill, in its motion for reconsideration under Fed. R.
Civ. P. 59(e), presented an affidavit from Pug Vickers, a Lake Hill
employee. The affidavit states that Yamaha allocated Lake Hill
only 2 model year 2000 personal watercraft even though Lake Hill
ordered 23. Lake Hill now argues that this affidavit shows that it
has suffered, or at least is threatened with, some injury from the
alleged resale price maintenance conspiracy between Yamaha and Jim
Bennett. We will not consider this affidavit, however, as it is
not a part of the record before us.
As we have said, the district court denied Lake Hill’s motion
for reconsideration of its summary judgment. The district court
held that the facts asserted in the Vickers affidavit were known to
Lake Hill before the summary judgment ruling and thus the affidavit
was not timely filed as part of a motion for reconsideration based
on new evidence. We review the district court’s ruling on the
motion for reconsideration only for an abuse of discretion. Farm
Credit Bank of Texas v. Guidry, 110 F.3d 1147, 1154 (5th Cir.
1997). Lake Hill makes no arguments in its appeal as to why the
district court abused its discretion in denying Lake Hill’s motion
for reconsideration.
Moreover, the record indicates that Yamaha informed Lake Hill
of the model year 2000 product allocation no later than August 9,
1999, and the district court did not issue its summary judgment
until August 23, 1999. A district court is well within its
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discretion to refuse to consider evidence submitted as part of a
motion under Rule 59(e) which was known to the moving party before
the summary judgment was issued. Lavespere v. Niagra Mach. & Tool
Works, Inc., 910 F.2d 167, 175 (5th Cir. 1990). The district court
did not abuse its discretion in refusing to consider the Vickers
affidavit and in denying Lake Hill’s motion for reconsideration.
IV.
Lake Hill has not shown any injury or threat of injury
pursuant to its resale price maintenance cause of action. Nor has
it shown any harm to competition pursuant to its cause of action
concerning Yamaha’s cooperative advertising program. Therefore,
the judgment of the district court is AFFIRMED.
AFFIRMED.
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