677 F.2d 879 | Temp. Emerg. Ct. App. | 1982
This is an appeal from an order of the United States District Court for the Southern District of Florida, granting defendant’s motion for summary judgment under Counts I and II of plaintiff’s complaint.
Eastern instituted this action on June 12, 1974, complaining of the price it was charged for jet fuel by Mobil during a period when, under federal energy regulations, its purchases of fuel at the Boston, Syracuse, and Los Angeles airports were required to be made from Mobil.
Eastern first asserts that, for the Boston and Syracuse Airports, Mobil erroneously determined the base price of jet fuel as of May 15, 1973, the date used for calculation of the maximum prices permissible under the regulations.
Eastern’s second assertion is that Mobil has engaged in price discrimination by charging Eastern higher jet fuel prices than it charged TWA, another member of Eastern’s jet fuel class. Eastern claims that it is entitled to relief for such discrimination either as an overcharge under § 210(b) of the Economic Stabilization Act of 1970 or as a claim under the more general provisions of § 210(a) of the ESA.
The District Court acknowledged that an action might lie for price discrimination under § 210(a), but declined to consider this issue, stating that Eastern’s complaint did not set forth such a claim even when liberally construed. While the language of Counts I and II in Eastern’s complaint could be viewed as claiming relief only for statutory overcharges, and while Eastern was late in requesting formal amendment setting forth a claim under § 210(a), the facts upon which this claim was based had long been before the District Court.
Eastern also challenges the District Court’s ruling that Mobil’s “banks”
This case is reversed and remanded for consideration of Eastern’s claim of price discrimination under § 210(a) of the ESA. We express no view with regard to the merits of this claim either on the facts or the law, and leave for the District Court to determine whether Eastern’s claim necessitates further hearings or whether an appropriate disposition may be made by motion for judgment on the pleadings or for summary judgment.
REVERSED.
. The District Court opinion, dated May 1, 1981, is reported at 512 F.Supp. 1231.
. See 10 C.F.R. Parts 210-212. The mandatory supply relationship between Mobil and Eastern lasted from November 1, 1973, until October 31, 1974.
. See 10 C.F.R. § 212.82, “maximum allowable price.”
. In its reply brief on appeal, Eastern does not concede the correctness of this holding, but acknowledges that this issue is controlled by Taunton Municipal Lighting Plant v. Quincy Oil, Inc., 669 F.2d 710 (TECA 1982).
. § 210(a) provides in relevant part that “[a]ny person suffering legal wrong because of any act or practice arising out of this title, or any order or regulation issued pursuant thereto, may bring an action ... for appropriate relief, including an action for ... damages.”
. § 210(c) defines “overcharge” as “the amount by which the consideration for ... sale of goods ... exceeds the applicable ceiling under [the mandatory petroleum price] regulations.”
. 10 C.F.R. § 210.62(b) provides:
No supplier shall engage in any form of discrimination among purchasers of any allocated product. For purposes of this paragraph, ‘discrimination’ means extending any preference or sales treatment which has the effect of frustrating or impairing objectives, purposes and intent of this chapter or of this Act.
. Eastern had asserted a claim under § 210(a) in its motion for summary judgment, but did not move to amend its complaint until June 1, 1981, after summary judgment had been entered in favor of Mobil. Several years earlier, however, in its request for amendment on October 20, 1977, Eastern had set forth a price discrimination claim under the Robinson-Pat-man Act; this amendment was allowed on December 31, 1979.
. See 10 C.F.R. § 212.83(d).