CELEBREZZE, Senior Circuit Judge.
Plaintiffs-appellants Misco, Inc., Mid-South Aluminum Company, and Everett W. Fielder (collectively referred to as "Misco") appeal from the district court's rulings in favor of defendants-appellees United States Steel Corporation ("USS") and USS' wholly-owned subsidiary Alside, Inc. on their federal antitrust and Tennessee common law and statutory breach of contract claims. On appeal, Misco alleges that the district court committed numerous errors in reaching its decisions. After carefully considering each contention, we affirm in part, reverse in part, and remand for further proceedings.
The district court assumed, without ever explicitly deciding, that the following facts taken from Misco's complaint were true. Fielder was the sole shareholder in Mid-South Aluminum Company (Mid-South), located in Nashville, Tennessee. In 1966, Mid-South and Alside, Inc. ("Alside") entered into an exclusive dealership agreement. Under the agreement, Mid-South in exchange for agreeing to retail Alside products was given the exclusive rights to retail Alside products in middle Tennessee.
Misco in its complaint alleged that Alside and USS violated Section 1 of the Sherman Act, 15 U.S.C. § 1 (1982), and Sections 2(a), 2(d), and 2(e) of the Robinson-Patman Act, 15 U.S.C. §§ 13(a), 13(d), 13(e) (1982). Misco further contended that Alside breached its exclusive dealership contract with Misco and that USS wrongfully induced the breach in contravention of Section 47-50-109 of the Tennessee Code, Tenn.Code Ann. § 47-50-109 (1984). The district court dismissed Misco's claims under Section 1 of the Sherman Act, Sections 2(d) and 2(e) of the Robinson-Patman Act, and Section 47-50-109 of the Tennessee Code for failing to state claims upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). After some discovery, the district court granted Alside's and USS' motion for summary judgment on Misco's claim under Section 2(a) of the Robinson-Patman Act. Finally, following a trial on the record, the district court determined that Alside had not breached its contract with Misco. On appeal, Misco attacks all of the district court's holdings and argues that the district court improperly refused to consider its untimely demand for a jury trial and erroneously categorized its "requests for admissions" as interrogatories. We will consider the antitrust claims first, the state law actions second, and the procedural issues last.
A complaint may only be dismissed under Rule 12(b)(6) if the allegations in the complaint appear beyond doubt not to support a claim for which relief may be granted. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The district court, in this case, ruled that Misco's claims under Section 1 of the Sherman Act and Sections 2(d) and 2(e) of the Robinson-Patman Act failed to state actionable claims. We consider each claim in turn.
Misco alleges that Alside and USS violated Section 1 of the Sherman Act by conspiring to eliminate competition in the marketing of siding. In order to state a claim under Section 1, the plaintiff must allege the existence of concerted activity. See United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). Misco concedes, as it must, that Alside being a wholly-owned subsidiary of USS is and has been since June 1969 incapable of conspiring with USS. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 2745, 81 L.Ed.2d 628 (1984); see Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 221 (6th Cir.1985) (per curiam). Misco, however, asserts that the conspiracy between Alside and USS began before USS acquired Alside and that USS' acquisition of Alside in 1969 was part of the conspiracy. Even accepting these assertions, Misco's complaint was still filed over nine years after the last overt act, USS' acquisition of Alside. Thus, since the "statute of limitations commences to run from the commission of the last overt act causing injury or damage," Akron Presform Mold Co. v. McNeil Corp., 496 F.2d 230, 233 (6th Cir.), cert. denied, 419 U.S. 997, 95 S.Ct. 310, 42 L.Ed.2d 270 (1974), Misco's action is barred by the four year statute of limitations applicable to antitrust actions. 15 U.S.C. § 15b (1982). Accordingly, the district court correctly dismissed Misco's Section 1 conspiracy claim.
Misco also alleged in its complaint that Alside and USS violated Sections 2(d) and 2(e) of the Robinson-Patman Act. The
Similarly, Misco contends that Alside and USS violated Section 2(a) of the Robinson-Patman Act by discriminating in the prices which they charged their customers. The district court granted summary judgment in Alside's and USS' favor on this claim. Summary judgment may only be granted if, viewing the evidence in the light most favorable to the non-moving party, there is no issue of material fact. Fed.R.Civ.P. 56(c); SEC v. Blavin, 760 F.2d 706, 710 (6th Cir.1985) (per curiam). Further, in antitrust litigation summary procedures should be used sparingly. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Smith v. Northern Michigan Hospitals, Inc., 703 F.2d 942, 947-48 (6th Cir.1983).
Section 2(a) of the Robinson-Patman Act only applies to sales which are "in commerce." 15 U.S.C. § 13(a) (1982). The in commerce jurisdictional prerequisite is met only if one of the alleged discriminatory sales crossed a state line. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 198-201, 95 S.Ct. 392, 400-01, 42 L.Ed.2d 378 (1974); S & M Materials Co. v. Southern Stone Co., 612 F.2d 198, 200 (5th Cir.), cert. denied, 449 U.S. 832, 101 S.Ct. 101, 66 L.Ed.2d 37 (1980); Willard Dairy Corp. v. National Dairy Products Corp., 309 F.2d 943, 946 (6th Cir.1962), cert. denied, 373 U.S. 934, 83 S.Ct. 1534, 10 L.Ed.2d 691 (1963). Misco's complaint lacks any allegation and Misco has failed to adduce any evidence tending to show that any of the discriminatory sales crossed state lines. In these circumstances, the district court did not err in granting summary judgment. We next consider Misco's state law claims.
Misco asserts that the district court erred in ruling in favor of Alside and USS on its breach of contract claim. The district court relied upon two grounds in rejecting Misco's claim: first, that Misco initially breached the exclusive dealership contract and, second, that Misco received adequate notice of the termination. Although a district court's findings of fact must be upheld by a reviewing court unless clearly erroneous, Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, North Carolina, ___ U.S. ___, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985), an appellate court may reverse a district court's factual findings if, based on the entire record, it is left with a definite and firm conviction that a mistake has been committed, United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).
The district court first determined that "no factual dispute" existed concerning the fact that Misco initially terminated the exclusive dealership agreement. This finding lacks any support in the record. The district court, in support of its holding, noted that Fielder admitted that he took action inconsistent with his position as Alside's exclusive dealer on June 24, 1974,
The district court reasoned that since Misco received notice of Alside's plan to open a Nashville warehouse on June 24, 1974, over two months before the warehouse opened in September, 1974, Misco had received all the prior notice to which it was entitled. Under Tennessee law, a contract lacking a durational term is terminable at will by either of the parties. Apco Amusement Co. v. Wilkins Family Restaurants of America, Inc., 673 S.W.2d 523, 528 (Tenn.Ct.App.1984). Contracts terminable at will can only be terminated upon reasonable notice. Cates v. Electric Power Board of the Metropolitan Government of Nashville and Davidson County, 655 S.W.2d 166, 170 (Tenn.Ct.App.1983); First Flight Associates, Inc. v. Professional Golf Co., 527 F.2d 931, 935 (6th Cir.1975). Reasonable notice of termination flows from and must be determined in accordance with the standards of good faith and fair dealing implied in every contract. See Sylvan Crest Sand & Gravel Co. v. United States, 150 F.2d 642, 644 (2d Cir.1945); Restatement (Second) of Contracts § 205 (1979); see also Tenn.Code Ann. §§ 47-1-203, 47-2-103(1)(b) (1964).
The district court's holding on this issue was premised upon an earlier order in which, while considering Alside's and USS' motion to dismiss Misco's contract action for failing to state a claim for which relief could be granted, it noted that as a matter of law a period of thirty days, not to exceed sixty days, was reasonable notice. The determination concerning what constitutes reasonable notice, however, is a fact-specific inquiry dependent upon the length of the contractual relationship between the parties, the reliance which either party has placed upon the continuing vitality of the contractual relationship, the particular business involved, and the practices and customs in the industry. The district court, thus, erred in concluding as a matter of law that thirty days was reasonable notice without considering the specific circumstances surrounding this case. Since neither ground relied upon by the district
Misco also contends that the district court erroneously determined that its action against USS for wrongfully inducing Alside to breach the exclusive dealership agreement with Misco under Section 47-50-109 of the Tennessee Code, Tenn.Code Ann. § 47-50-109 (1984), was barred by the statute of limitations. The district court initially noted that Section 47-50-109 creates a statutory treble damage remedy for wrongful inducements to breach a contract and contains no express limitations period. Thus, the district court reasoned that either Tennessee's one year statute of limitations for "actions for statutory penalties," Tenn.Code Ann. § 28-3-104(a) (1980), or Tennessee's three year limitations period pertaining to actions "for injuries to personal or real property," Tenn.Code Ann. § 28-3-105(1) (1980), would apply. In either case, the district court concluded that Misco's action was barred since Misco's complaint was filed almost four years after any alleged wrongfully induced breach. Misco maintains that this Court's decision in City of Atlanta v. Chattanooga Foundry & Pipeworks, 127 F. 23 (6th Cir.1903), aff'd, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906), mandates that Tennessee's ten year catch-all limitations period, Tenn.Code Ann. § 28-3-110(3) (1980), be applied to actions under Section 47-50-109. We disagree.
In Chattanooga Foundry, this Court applied Tennessee's ten year catch-all statute of limitations to an action brought under Section 1 of the Sherman Act.
Misco argues that the district court erred in refusing to grant its untimely motion for a jury trial. Although Rule 38(b), Fed.R.Civ.P. 38(b), requires that a demand for a jury trial be made within 10 days of the last pleading directed to the issue, a district court "in its discretion" under Rule 39(b), Fed.R.Civ.P. 39(b), may grant a late motion for a jury trial. A district court has broad discretion in ruling on a Rule 39(b) motion. Swofford v. B & W, Inc., 336 F.2d 406, 408 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1965). As a general rule, a district court will not abuse its discretion in denying a Rule 39(b) motion if the only justification is mere inadvertence.
In this case, Alside and USS answered Misco's complaint on July 10, 1978. Misco did not file its demand for a jury trial until almost three months later on October 6, 1978. Misco has given no reason why it was well over two months late in requesting a jury trial. Moreover, the district court, in denying the motion, reasoned that, due to the complexity of the case, a jury trial would be less efficacious than a bench trial. Under these circumstances, we do not believe that the district court abused its discretion in denying the Rule 39(b) motion.
Finally, Misco contends that the district court abused its discretion in determining that Misco's "requests for admissions" were actually interrogatories. On May 22, 1978, less than one month after filing its complaint and before either USS or Alside had filed an answer, Misco filed requests for 2,028 admissions, comprising 343 pages. Although Misco one month later voluntarily withdrew 580 of its "requests of admissions," this still left 1,440 requests, comprising 225 pages. Alside and USS objected to the requests for admissions and the matter was referred to a magistrate. The magistrate held that only 18 of the 1,440 styled "requests for admissions" were actually valid requests for admissions under Rule 36, Fed.R.Civ.P. 36. The other 1,432 requests were determined by the magistrate to be interrogatories under Rule 33, Fed.R.Civ.P. 33, which a local district court rule limited to thirty. The district court adopted the magistrate's recommendation and report.
Requests for admissions are not a general discovery device. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2253, at 706 & n. 23 (1970)
For the foregoing reasons, the judgment of the district court is affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.