GOLDBERG, Circuit Judge:
Southern Rambler Sales, Inc. (Rambler) was a New Orleans franchisee of American Motors Corporation and American Motors Sales Corporation (American) from January 1958 until July 1960, when at Rambler's request the franchise was terminated.
In its complaint, Rambler pleaded oral representations by American at the time of enfranchisement that the latter would grant no competing franchise in Rambler's area without first giving Rambler the right of refusal of these franchises and that competing franchises were granted without so advising Rambler. Rambler further pleaded that it was the victim of discriminatory delivery of automobiles in that American refused to allot to Rambler fast-selling popular models and instead loaded it with unsaleable models, thus weakening Rambler's economic position and forcing it to liquidate its business by piecemeal sales. According to Rambler, moreover, American should have cooperated with it in facilitating the sale by Rambler of its assets to a new American franchisee. Rambler sought in excess of $2,000,000 damages, which allegedly arose out of American's (1) general violations of the anti-trust laws, Section 1 of the Sherman Act, 15 U.S.C.A. § 1, and the Clayton Act, 15 U.S. C.A. §§ 12-27; (2) interference with the sale of Rambler's franchise dealership; (3) breach of the franchise contract; and (4) violation of the Automobile Dealers Day in Court Act, 15 U.S. C.A. §§ 1221-1225.
The deposition of Rambler's president had been taken on September 18, 1963. On April 2, 1965, American filed a motion to dismiss or, alternatively, for summary judgment with two supplementary affidavits. On April 28, 1965, the court granted summary judgment. Rambler thereafter filed a motion for new trial on May 10, 1965, and a motion for production
The causes of action involving (1) anti-trust violations, (2) interference with sale of Rambler's dealership, and (3) breach of contract were abandoned because not pursued by proof or briefed on appeal. See Iob v. Los Angeles Brewing Company, 9 Cir. 1950, 183 F.2d 398, 401 and Sugg v. Hendrix, 5 Cir. 1946, 153 F.2d 240, 242-243, where, in an action by a truck driver against a construction company for injuries sustained when the driver ws caught between his tank truck and defendant's tractor, the court held the defense of failure to exercise reasonable care was abandoned because of lack of argument and evidence.
The only possible cause of action justiciably before us here involves 15 U.S. C.A. §§ 1221-1225, commonly known as the Automobile Dealers Day in Court Act. This case in part tests whether the Automobile Dealers Day in Court Act gives the dealers anything more than its name implies. More precisely, this suit is bottomed on the failure of American to act in "good faith" as that term is defined in the statute.
The Rambler and American franchise agreement gave to Rambler a nonexclusive franchise, afforded American wide latitude in vehicle allocation, and absolved it from responsibility for failure to deliver and for delays in filling orders.
Here too, Rambler's allegation of such oral representations is not admissible.
Second, in each case arising under the Act, good faith or the lack of it must be determined in the context of "coercion, intimidation, or threats of coercion or intimidation from the other party." It is here that Rambler failed to carry its burden. The focal point of Rambler's complaint is found in its allegations that American, "acting in a coercive, unfair and inequitable manner," discriminated against Rambler with respect to allocation of vehicles thereby leading it to the forced sale of its business.
The statute, it must be noted, does not afford Rambler a statutory right or formula for allocation or delivery of certain cars. In Augusta Rambler Sales, Inc. v. American Motors Sales Corp., N.D.Ga.1962, 213 F.Supp. 889, where a dealer complained under the Act of one of these same defendants' failure to deliver orders and of excessive shipments of automobiles of undesirable colors and models, the court held that nothing in the contract obligated American to furnish any number of cars at any particular time and that no prohibitive acts of coercion, intimidation, or threats were thus presented. Similarly, no unfair allocation under the Act is shown where a dealer receives more cars than its competitor during a period of production shortage, Globe Motors, Inc. v. Studebaker-Packard Corporation, 3 Cir. 1964, 328 F.2d 645, or where a dealer gets a higher percentage of the cars allotted in his area than he is thereafter expected to sell, Leach v. Ford Motor Co., N.D. Cal.1960, 189 F.Supp. 340. As pointed out in Bateman v. Ford Motor Company, E.D.Pa.1962, 204 F.Supp. 357, automobile dealers often cannot secure all the fast-moving models they desire, but sometimes receive harder to sell models.
Thus, there being no right to cars of certain color, body, or style, Rambler must demonstrate that degree of bad faith allocation which has coercive and intimidating effects. As the court said in Globe, supra, 328 F.2d at 648,
Finally, the right of a dealer under the Act to an exclusive dealership in his territory has been specifically rejected. In Globe, supra, establishment of a competitive dealership ten blocks away was held not to be failure to act in good faith; moreover, the legislative history of the Automobile Dealers Day in Court Act instructs us that such competitive dealerships were not to be considered evidence of bad faith.
This language was cited with approval in Garvin v. American Motors Corporation, 3 Cir. 1963, 318 F.2d 518, where a dealer attempted to prove a violation of the Act by the manufacturer's establishment of a competitive dealership in an area near him. As is also true with the case at bar, the court in Garvin pointed out that:
Even the exaction of minimum sales accompanied by threats to establish competitive dealerships has been held not to be coercive per se. Victory Motors of Savannah v. Chrysler Motors Corp., 5 Cir. 1966, 357 F.2d 429. There, the court emphasized that even if Chrysler had established a new dealership, Victory still would have to show that its establishment was coercion or intimidation amounting to bad faith on the part of Chrysler.
With this legal setting, we turn to the summary judgment aspects of this case. Chronology and the time span are helpful here. The complaint was filed on March 28, 1961. The deposition of Grady, Rambler's president, was taken on September 18, 1963. Grady's answers on deposition lack specificity and are suppositious, speculative, conclusory, and unfactual.
If Rambler suspected American of discrimination or establishing competition of such quality as to amount to bad faith, the underlying facts were not inaccessible. Rambler had from May until August to employ the tools and devices of discovery if the facts were not otherwise discernible but failed to do so.
The tools and devices of discovery are more than options and opportunities. Rule 56 expressly exacts them by negative compulsion on pain of judicial denouement — saying in effect, "Meet these affidavit facts or judicially die."
Accord, Schneider v. McKesson and Robbins, 2 Cir. 1958, 254 F.2d 827; Berry Brothers Buick, Inc. v. General Motors Corp., E.D.Pa.1966, 257 F.Supp. 542. Under the circumstances here, Rambler had an obligation to attempt to extract and sequester facts from American.
The trial court in the case at bar was more than patient in awaiting Rambler's controverting affidavits or efforts in any direction. It did not abuse its discretion in refusing to order the production of documents by American after summary judgment had been granted. Lawsuits are not timeless or aeonian, and although aging is not an altogether unhappy process, it is not a desirable aspect of judicial proceedings. All things must end — even litigation.
"§ 1222. Authorization of suits against manufacturers; amount of recovery; defenses
"An automobile dealer may bring suit against any automobile manufacturer * * * and shall recover the damages by him sustained and the cost of suit by reason of the failure of said automobile manufacturer * * * to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, canceling, or not renewing the franchise with said dealer * * *."
"§ 1221. Definitions as used in this chapter —
"(e) The term `good faith' shall mean the duty of each party to any franchise, and all officers, employees, or agents thereof to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party: Provided, That recommendation, endorsement, exposition, persuasion, urging or argument shall not be deemed to constitute a lack of good faith." 15 U.S.C.A. §§ 1222 and 1221.
Sec. One: "As long as this Franchise Agreement shall remain in effect, Dealer shall have the non-exclusive right to purchase from Zone and resell motor vehicles and Manufacturer's parts and accessories."
Sec. Four: "Zone shall not be liable or responsible in any manner to Dealer for failure or delay to fill any order placed hereunder or for other failures to perform when same is due to or the result of strikes or other labor troubles, fires, floods, material or labor shortages, embargoes, stoppages in transit, direct or indirect acts, regulations or orders of Government, the Zone's allocation of motor vehicles and other products to and among dealers and other customers on such basis as Zone may determine, war, sabotage, acts of God or the public enemy, and other causes beyond the control of the Zone and/or the Manufacturer."
Sec. Eight: "Zone may ship motor vehicles, parts, accessories and other merchandise ordered hereunder by any means of transportation and from whatever point it may select."
"That once having granted these franchises, defendants immediately began acting in a coercive, unfair and inequitable manner, in failing and refusing to furnish complainant with the vehicles that were salable and/or ordered by it, but during the same period did furnish the said type of vehicles to complainants' competition, Bernie Dumas Buick Rambler, Inc., and Colonial Rambler, Inc., all to the detriment of complainant, who was then a recognized, reputable and successful franchise dealer." (R. 9).
"(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, 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. If he does not so respond, summary judgment, if appropriate, shall be entered against him."
"(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."