In this Robinson-Patman Act case (Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13), we are called upon to review certain rulings of the district court, which, inter alia, granted motion of defendant Metzger Dairies (appellee) for summary judgment, restricted the scope of written interrogatories propounded by the plaintiff Jones (appellant) to Metzger, and failed to rule upon plaintiff's motion for leave to file an amended complaint after the order granting summary judgment.
The plaintiff Jones filed this action for treble damages and an injunction against four corporate defendants (three of which have been subsequently removed by settlement) alleging price discrimination by Metzger against Jones in the sale of certain dairy products during the period April, 1959, until June 22, 1960. Jones was formerly an independent milk distributor in Winkler County, Texas, and prior to April, 1959, he had been a sub-distributor for Metzger in the sense that he purchased dairy products from Pecos Dairy Distributing Company who had purchased the same products from Metzger. He was also a distributor for Borden Dairy Products. Diagrammatically, the relative position of Jones in the distributive chain prior to April 1959, was that of a sub-distributor, whose immediate vendor was Pecos Dairy Distributing Company.
The main thrust of plaintiff's attack is directed at the district court's ruling which, in effect, geographically limited the scope of the discovery process to ten counties in West Texas and a portion of
We readily concede that the concept of the "relevant market" as applied to antitrust cases is certainly less than static. We are prepared to venture even further and conclude that the term "relevant market" is a rather evanescent term which can be skillfully manipulated somewhat in the manner of an accordion. In the instant proceedings, however, it is our opinion that the proper determination of the relevant market should not embrace any area beyond the restrictions provided by the order of the learned trial judge. See United States v. Watchmakers of Switzerland Inf. Ctr., (U.S. D.C. S.D. N.Y. 1958) 168 F.Supp. 904, wherein the trial judge held that discovery procedures must be limited if antitrust cases are to be kept within "reasonable bounds." See also T. C. Theater Corp. v. Warner Bros. Pictures, Inc., et al., 16 F.R.D. 173, 175 (D.C.S.D. N.Y., 1954); and United Cigar-Whalen Stores Corp. v. Phillip Morris, Inc., 21 F.R.D. 107 (D.C.S.D. N.Y., 1957).
The general criteria of the Robinson-Patman Price Discrimination Act are these: (1) the transaction must be in interstate commerce; (2) it must have the effect of substantially lessening competition or tending to create a monopoly; (3) or it must have the effect of injuring, destroying or preventing competition with any person who either grants or knowingly receives the benefit of such discrimination, or with the customers of either of them. The acts complained of did not occur in interstate commerce, nor did they involve the factual circumstances outlined in our recent case of Shreveport Macaroni Manufacturing Company v. F. T. C., 321 F.2d 404 (5 Cir. 1963).
From the facts presented in the instant case we are unable to conclude that any acts of price discrimination occurred between the plaintiff Jones and Metzger Dairies, Inc. No sales of Metzger's products were made to Jones during the period in question. Metzger sold only to its distributor, Pecos. The courts have uniformly held that the Act contemplates two purchasers. Hartley & Parker, Inc. v. Florida Beverage Corp., (5 Cir. 1962) 307 F.2d 916; Naifeh v. Ronson Art Metal Works, Inc., (10 Cir. 1954) 218 F.2d 202, affirming 117 F.Supp. 690 (D.C.W.D.Okla., 1953); Klein v. Lionel Corp., (U.S.D.C.Del., 1956) 138 F.Supp. 560, 563; Shaw's, Inc. v. Wilson-Jones Co., (3 Cir. 1939) 105 F.2d 331.
We find no error in the action of the trial court in refusing to allow the appellant to make further inquiry into the gross sales of Metzger in the State of Texas, or elsewhere in the United States. In our judgment, the facts with regard to the activities of Metzger were fully developed and known to the court and the parties. Even though not in the exact form requested by the plaintiff Jones, information as to gross sales by Metzger was fairly well presented. Full and complete discovery should be practiced and allowed, but its processes must be kept within workable bounds on a proper and logical basis for the determination of the relevancy of that which is sought to be discovered.
The allowance of amendments is a matter within the sound discretion
On oral argument, counsel for the plaintiff Jones forthrightly stated that he had been unable to find a case in point to support his contentions in the instant case. We have carefully reviewed a rather well-developed evidentiary record, the initial briefs, supplemental briefs, and reply briefs. The case remains nebulous, vague, indefinite and uncertain. Our examination of the record and briefs, however, convinces us that the case was fairly and patiently considered by the trial court and that the correct result was reached. The learned and experienced trial court retained jurisdiction of the case for approximately three years, during which period of time there were conferences, pretrial procedures, depositions, interrogatories, motions, answers, briefs, and other proceedings. The docket entries alone require almost 19 pages of the record. We have found no error.
The judgment is affirmed.
"Q. Did you or did you not tell Earl Adams that if he talked to anyone from Metzger to tell them not to worry or anything substantially like that?
"A. The only thing I told Earl Adams that I didn't know whether I had too much of a case against Metzger's Dairies.
"Q. Is that all you told him?
"A. I told him that — I also told him that I don't think Metzger ought to be too much worried about it."
* * * * *
"Q. Well, do you attribute any of your damages arising out of your loss of the Metzger distributorship to the Metzger Dairies?
"A. No, I can't contend that Metzger Dairies were at fault as to me losing my Metzger distributorship.
"Q. Or do you attribute any to Pecos Dairy Distributors, I believe their name is, in that connection?
"A. Since he isn't a defendant in the suit, I cannot attribute any loss to him." (According to the statements of the parties and the facts disclosed by the record, Jones was actually a sub-distributor and obtained his products from Pecos who in turn obtained the same products from Metzger.)
The failure of the record to show by clear allegations in the pleadings, by the evidence, or otherwise, that the defendant Metzger was guilty of unlawful price discrimination, or other predatory and prohibited practices, was the subject of inquiry from the court on oral argument. The following statement from the supplemental brief of Metzger remains unanswered by Jones: