FILED
NOT FOR PUBLICATION
AUG 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AFMS LLC, No. 15-55778
Plaintiff-Appellant, D.C. No. 2:10-cv-05830- JGB-
AJB
v.
UNITED PARCEL SERVICE, INC.; MEMORANDUM*
FEDEX CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted March 8, 2017
Pasadena, California
Before: REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.
AFMS LLC (“AFMS”) appeals the grant of summary judgment in favor of
Appellees United Parcel Service, Inc. (“UPS”) and FedEx Corporation (“FedEx”)
on AFMS’ antitrust suit under § 1 of the Sherman Act, 15 U.S.C. § 1. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Summary judgment in an antitrust case is appropriate where the plaintiff
fails to define a cognizable market. See, e.g., Morgan, Strand, Wheeler & Biggs v.
Radiology, Ltd., 924 F.2d 1484, 1489 (9th Cir. 1991). AFMS proffers two market
definitions: a market for “shipping consultation services” and a market for “rate
negotiation.” AFMS has attempted to construct markets that include solely itself,
other third party rate consultants, UPS, and FedEx. They cannot, however, explain
their exclusion of in-house shipping advisors, the U.S. Postal Service, regional
carriers, or other types of shipping consultants. Further, it is highly questionable
whether UPS and FedEx are participants in the market for “rate negotiation.”1 To
establish antitrust standing, an antitrust plaintiff must participate in “the same
market as the alleged malefactors.” Amarel v. Connell, 102 F.3d 1494, 1508 (9th
Cir. 1996) (quoting Bhan v. NME Hosps., Inc., 772 F.2d 1467, 1470 (9th Cir.
1985)).
AFMS has failed to define a cognizable market or to show that both it and
Appellees are participants in that market.
The district court’s grant of summary judgment is
AFFIRMED.
1
It seems highly implausible that a shipping company, such as UPS or
FedEx, could “negotiate” with itself about the rates it would charge shippers.
2
AFMS, LLC v. United Parcel Service Co., 15-55778 FILED
NGUYEN, Circuit Judge, concurring in the result: AUG 21 2017
MOLLY C. DWYER, CLERK
The market definitions that AFMS advances are cognizable for U.S. COURT OF APPEALS
antitrust
purposes. See Yellow Pages Cost Consultants, Inc. v. GTE Directories Corp., 951
F.2d 1158 (9th Cir. 1991). However, AFMS failed to support its legal theories
with sufficient evidence to survive summary judgment.
AFMS was not required, as the district court suggested, to provide expert
testimony regarding the relevant market. Cf. United States v. Pabst Brewing Co.,
384 U.S. 546, 549 (1966) (“Certainly the failure of the Government to prove by an
army of expert witnesses what constitutes a relevant ‘economic’ or ‘geographic’
market is not an adequate ground on which to dismiss a [Clayton Act § 7] case.”).
The district court was within its discretion, however, in excluding Stuart Brotman’s
proffered expert testimony, see Fed. R. Evid. 702; Jinro Am. Inc. v. Secure Invs.,
Inc., 266 F.3d 993, 1001–04 (9th Cir. 2001), and had no obligation to consider
inadequately cited evidence in the voluminous record before it. See Nilsson,
Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d
1538, 1545 (9th Cir. 1988).
1
AMFS, LLC v. United Parcel Service, Inc.; Fedex Corporation, No. 15-55778
FILED
AUG 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
REINHARDT, Circuit Judge, dissenting:
I respectfully disagree. I am not persuaded that plaintiff has failed to raise a
genuine issue of fact as to the existence of a market regarding shipping consultation
services, rate negotiations, and/or a combination of the two. See Yellow Pages Cost
Consultants, Inc. v. GTE Directories Corp., 951 F.2d 1158 (9th Cir. 1991); Telecor
Communications, Inc. v. Sw. Bell Tel. Co., 305 F.3d 1124, 1129, 1131 (10th Cir.
2002).