*3 Angeles, Cal., the district court stated that case the was appellees. for appellees’ before on the court motion for Before CHAMBERS, BARNES and summary judgment appellant’s and on JERTBERG, Judges. Circuit partial summary judgment; motion for that each motion is the issue directed to JERTBERG, Judge. Circuit jurisdiction under the Sherman Appellant appeals judgment Clayton Acts, stated, “The court has dismissing jurisdic- for want of federal testimony in' taken addition to the affi- tion a civil antitrust for action treble counsel, parties are in davits damages. Jurisdiction of the district agreement that all evidence relevant provisions invoked was under the jurisdictional issue is before the now 1, 2, 4, 7, Title U.S.C.A. 15 and §§ F.Supp. court.” [178 185.] 18, commonlyknown as the Sherman An- We are satisfied from the record’ Clayton titrust Act and the Act. This germane question jurisdiction that all evidence provi- Court has sions of Title U.S.C.A. 1291 and of before the court. The §§ appear parties likewise on satisfied since Judgment appellant appeal of dismissal this does not contend was entered following granting summary judgment by improper that the district genuine presence appellees’ summary court of judgment motion for because ground party material issue as to a argues fact. Each based that there genuine existed no that under the facts issue on a before material relating judgment question jurisdic- fact each is entitled to a to the trial court juris- proceedings tion. on the To denominate a matter of law issue leading therefore, entry We, up judgment conclude of diction. summary judg- sep- parties to a dismissal motion have in effect consented as a for jurisdiction. the issue of ment of a trial on is somewhat misnomer arate light Norris, Cir., 1956, Gillespie the record in this case. Follow- See ing discovery pretrial proceed- note that the trial court 881. We extensive F.2d right (10) proper market has Bureau divided circumstances territorially among ex- separate separate issues its members order trials of Civil cluded and excluded same Rules ease. Federal non-members territory another 42(b), Hence member from the Procedure 28 U.S.C.A. opinion member. concern itself will applied correctness of the tests appel- It is contention findings fact the district court to destroy sought lee Journal, made it. Bureau, member of the not a impaired reve- their activities The action on behalf Consolidated severely Printing Publishing Company, a dis- nues of so the Journal *4 (hereinafter and corporation referred Consolidated forced to dissolve solved was “Consolidated”), forced derivative thereof were stockholders as as $1,050,- dissolu- of the Journal Prior its sell assets stockholder’s suit. May former 000 less than the value tion Consolidated An- treble such publisher of Los Journal. seeks owner and pri- geles Daily newspaper Journal, amount. legal marily engaged publication of in the proceeding re- we will Before further advertising Angeles Vi- area. Los in the background necessary his- view charged law are olations of the antitrust gist torical charges material. against particu- appellees, and more appellees combined larly appellant contends: An- conspired to eliminate Los geles (1) competitor An- Los That formed the Journal as County advertising Bureau, legal geles Newspaper a Cal- field of in the Service monopolize corporation; Angeles, such Los and 'to ifornia market, monopolize market. and did such prices for (2) Bureau fixed That the Legal advertising re- notices consists advertising legal public private by published quired law to California be Angeles County; Los general agent (3) appointed who That an Legal within the State California. public ad- bids on collusive submitted advertising is divided into two basic vertising ; categories: legal (a) advertising, public pooled (4) Bureau members That the by placed which consists of notices fed- print public le- and facilities forces eral, state, district, county, city, school advertising, gal non-mem- and excluded governmental agen- or other or divisions proj- participation in these from bers required by cies which are to cause law ects; published notices to be in such news- (b) legal papers; private advertising, pooled re- (5) That Bureau members by required consists of notices law legal advertising; ceipts from derived published in to be connection with (6) Bureau That endeavored within or in conduct business the state general public placing prevent the proceed- court or connection with advertising legal newspapers not ings pending in the In order to state. alleged conspiracy; members publish qualify under California law to de- (7) Bureau That the endeavored legal notices, newspaper must be a by threats, stroy intimida- non-members newspaper of circulation as de- duress; tion requires fined law. California law newspaper acquired Bureau stock (8) That established, such must that printed be non-members; assets of various regular published at inter- year Bureau, place at for least in the (9) various other vals That the required, competi- and must specified, eliminated where means adjudicated gen- newspaper public private be a le- be in the field tion County; purpose Angeles advertising eral circulation. basic gal in Los requiring publicaton of notices laws icing published private in the public is to place have such notices adver- they likely tising published respective where it is most might persons appellee newspaper. will be who read each Each pub- Accordingly places independ- member of concerned. the Bureau anwas express- newspaper ent establishment, lication often notices are and each decree, ly by statute, operated primarily city a court localized in a local neighborhood re- public are City action of officials who within the and within sponsible County publication. Angeles. for of Los The sub- scription list of each such early dom- In the 1930’s Consolidated primarily was drawn from the circula- inated market community respective tion area in the County Angeles, had Los paper. The Bureau also rendered monopoly mar- of such achieved a virtual types various other for of services each newspapers of the metropolitan ket. The publisher, furnishing such as informa- City Angeles, the Los Los concerning requirements tion various Angeles Times, Exam- publication, customary charged for rates iner, Angeles Express, were and the Los particular guidance types publication, *5 legal of adver- not tising, in this field interested by in the matter of forms to be executed newspapers a number of small but publisher proof publication, the in and general circulation, printed pub- and furnishing forms of business notices to neighbor- in cities and lished the smaller legal advertising, be used in the sale of County An- hood of Los areas within the instructing advising and and on various geles, participating in interested in were problems affecting publication the of le- Representatives this field. of some gal advertising. The Bureau assisted appellee newspapers upon offi- called soliciting publishers lawyers, in title city Angeles and of cials of the of Los companies, departments, escrow court Angeles sought County and to the participate of Los commissioners, publish and others who legal advertising public in the legal newspapers in notices most by printed required in such officials to be likely persons to be seen affected Angeles They newspapers. Los were by assisting notices, pub- such and it not feasible for these advised that was competing lishers for such business. large public num- officials to deal with The Bureau from the forma- time of its throughout newspapers ber of scattered fostering principle tion was active in City County Angeles, and and of Los publication pri- of localization of of both dealing that the administrative duties of legal public notices, repre- vate and separately many with so small news- frequently ap- sentatives of the Bureau papers was too To burdensome. meet peared public before various officials problem public officials, raised legislative constantly seeking bodies newspaper and in order to enable small greater publication localization of the throughout publishers County of Los legal notices. The record discloses that Angeles compete field, to in this some of great- the efforts of the Bureau to secure appellees caused be formed in 1934 publication er localization of no- Amgeles Newspaper the Los Service tices were successful. Bureau, corporation, (here- a California greater “Bureau”), As a inafter referred as the result localization Angeles newspaper publication, pub- to enable each Journal, order the Los printed published lisher to have downtown civic center which Angeles judicial representative, district, who was Los authorized to in- became eligible appellee compete publication on behalf of solicit for public required public offi- notices which were to be Angeles County. published printed in Los Each cials appellee some other dis- newspapers individually trict, city, political or used the subdivision of City Angeles separate County Bureau of the under a of Los or the services of Los although agreement Angeles, remaining eligible for the solicitation and serv- by any required appellees. The compete of the activities the notice where only Angeles Daily printed published Los Journal carried a news- display ad- classified small amount circulation within Angeles vertising, judicial consisted result and its circulation Los As a district. County, lawyers Angeles largely foregoing of' Los other activities companies, charged companies, Bureau, reve- title that the escrow it is having An- other information firms a need of nues of geles from the Consolidated Los filings, concerning calendars, impaired that court Journal so became dis- was forced commercial information. Consolidated forced solve and were the stockholders ac- no makes claim These to sell the of the Journal. assets tivity appellees caused the Los purchased assets of the Journal Daily subscribers, to lose Journal lose from by of Consolidated the stockholders advertising, display toor classified Publishing Newspaper Mutual Com- job printing. Appellant loss lose claims (hereinafter pany, corporation referred only Consolidated revenue to “Mutual”), to as continued which has legal advertising. Appellant field of Angeles Daily competition makes no contention that subsidiary Bureau, and its Journal. The and the Consolidated existed between Mutual, corporation are owned substan- appellees dissemina- in the field news publish- tially by appellee display tion classi- or in the field of ers. advertising. fied Its contention sole regard competition existed are: owners advertising. community newspapers only publishers of in the field Angeles County, serving *6 in Los areas appellee news- record is clear that The of of and member each whom is engaged papers and Consolidated were filing of of the Bureau at the time (1) by in of interstate commerce virtue Bureau; original complaint; Mu- regular newsprint purchases their of ; corporations; of supplies tual several Consolidated; of said from sources outside officers for- California; (2) na- and stockholders the dissemination news; (3) carrying na- mer their directors of Consolidated. tional against advertising; (4) Con- no out-of- seeks affirmative relief tional a few and direc- not or Bureau did solidated its stockholders state subscribers. The engage sup- newspaper appellee purchasing newsprint Each or tors. is in by members, plies nor did it of its defined for use engage law, qualified printing publishing of therefore or California to legal appellee any publish newspaper. no contention notices. Each There is published newspaper printed and in is appellant in part neighborhood of the areas cities or curtail, any way attempted monopolize, County Angeles, of the primarily of Los and carries with, movement interfere or affect the display news and classified and any out- or of these from Consolidated advertising. lineage legal in The used articles or services. of-state advertising appellee newspapers con- in by found The facts the district court lineage percentage of a small stitutes are: display devoted tising. classified adver- Legal newspapers required pub- Defendant en- “7. to be notices Angeles gage by in interstate commerce vir- elsewhere than Los published lished regular by (1) purchases County are, course, their not tue newsprint of California, any herein sources of the concerned. outside Angeles (2) carriage County their in Los solicitation items, legal news some national feature notices for outside carriage (3) negligible, appellant their some national California advertising, (4) competition a few out-of- no contention makes way any affected state subscribers. has been market such inter- such No clients. out-of-state engaged in in- “8. Consolidated exist. (1) markets state by virtue commerce terstate newsprint from regular purchases of Daily Angeles “14. The Los (2) California, outside only newspaper sources in- Journal is the subscribers. few out-of-state primarily devoted volved which is Journal, pri- Daily Angeles only advertising. Los marily It advertising, devoted out-of- involved whose quantities insignificant carried particularly inter- state readers are display advertis- news and advertising. national ing. has It ested subscribers, only 13 out-of-state complimentary. three of whom are Consolidated, former if Even “9. Legal for out-of-state advertisments Daily of the owner reg- appeared the Journal clients aas Journal, eliminated had been very though ularly, scale small on a activi- competitor reason issue), (average per 5 items relation of defendants ties advertising, great majority items were of these Con- elimination placed are These local counsel. not competitor, would aas solidated ‘appreciable’ or- ‘substantial’ na- flow interfered have commerce amounts interstate display news tional any standards, come within commerce. minimis.” maxim de showing was, or could “10. No findings From the of fact the district made, have been defendants court concluded: any potential control control had. genuine “1. There is no issue as markets the interstate over any foregoing display facts which newsprint, advertis- national are determinative of the cause. ing, of national the dissemination news. “2. The market involved in the instant activity case is an intrastate creeping “11. no case of This is which is not in trade or commerce monopolization of between the states. market. *7 “3. The interstate trade or com- “12. that defend- Plaintiff claims plaintiff destroy merce in which newspapers and defend- ant were able to engage any ants Angeles Daily did not suffer anti- the Los Journal the competitive effects from the local acts of exercise control over the advertising legal plaintiff defendants of which market. Such con- com- plains. legal advertising trol of the local market could afford defendants no leverage “4. The activities of defendants gain of the in- control legal advertising with relation to did newsprint, in na- terstate markets any anti-competitive not have effect news, display or national ad- tional vertising, interstate market. how no matter successful “5. There is no gained legal monopoly couldbe the Federal Court in this case under advertising major market, since the the antitrust laws. interstate services and users commodities, those “6. Defendants great are entitled to a such as the met- summary judgment dismissing Angeles ropolitan dailies Los Judgment action, should be en- area, dependent upon are not reve- accordingly.” tered legal advertising. brought by nue from It is clear the facts submitted appreciable “13. No court, and as Angeles to the district reflected in for Los market exists either court, opinion of the district advertising the Page C. A. or for adver- Publishing Work, D.C., Co. v. placed 178 in Los tisements findings may 184, of fact kets in gaged. en- F.Supp. in be product law, In a relevant the antitrust field conclusions may market entire is than the involved in this action narrower published operation newspapers business scrutiny. Thus, printed, business Angeles County, Supreme has Court circulated in Los products pertinent market in which confined that the the relevant market of (flexible large product packaging materials) parties competed is of a for such Angeles County. enterprise, I. Du Pont United States v. E. 377, 1956, Co., De Nemours & 351 U.S. no found that district court 994, 76 S.Ct. 1264. A relevant L.Ed. legal adver interstate market exits tising championship market has been defined as newspapers published printed, boxing distinguished matches, from as Angeles County. and circulated in Los boxing matches, Box- International printing ing States, 1958, Club v. United decree, by law, notices is limited court 270; gospel S.Ct. L.Ed.2d public officials, to news the action of distinguished music, music as from other printed papers Enterprises, Affiliated Inc. Music Angeles County. The published in Los Sesac, Inc., D.C., F.Supp. af- by appellee applied claimed restraints 13; Cir., 1958, firmed paper 268 F.2d newspapers their activities distinguished advertising as attempt monopolize monopolize Times-Picayune circulation, Pub. Co. purely product local were on a involved States, 1953, 594, 73 345 U.S. wholly level and directed 872, 97 S.Ct. In United L.Ed. finding intrastate market. The Co., 1947, States v. Yellow 332 U.S. Cab erroneous, and the court is not district S.Ct. 91 L.Ed. prod properly that the concluded Supreme held Court that the Yellow Cab inter flow of uct involved is not engaged interstate commerce state commerce. transporting passengers from rail- Appellant’s main contention Chicago road to another be- station respect to that the trial court erred in Chicago unique position cause finding and above conclusion above travelers, as a terminus for interstate It is of the district court. but the Court also held trans- printing position business of portation by Yellow Cab from homes publishing Chicago railroad area station newsprint, ink, sup and other because commerce, was not in interstate items, plies, news and advertisements impact transportation of this on inter- become from outside California received together ingredients, state commerce was with local news too indirect for- *8 advertisements, other jurisdiction and local tuitous. The of test not is printed newspaper is which of the complained that the acts of affect a busi- County published in Los engaged commerce, ness in interstate out the State circulated and. complained but that the conduct of af- advertising California, and that fects the interstate commerce integral part being of such news an business. flow commerce. Even is in the paper granting argument Appellant proposition a makes the doubtful that newspaper that the requiring cases an fundamental nu constitute process changes exception Appellant this to rule. in the nature merous newspaper uninterrupted that the cases an contends seem can constitute product simple lay a rule if a flow, of the down that appellant’s view flow com news engaged newspaper is interstate to the business commerce relates merce protection it is entitled anti than the relevant mar rather a whole as particu concerned, laws no matter are trust where the which which we ket applied. is other lar restraint separate divisible from mar- leading cases consideration antitrust contentions A review appellee engaged price no such fix newspaper shows field ing spe- divisions, according newspapers and market consti which uniform rule per laws. tute se antitrust Section cial under violations treatment citing among cases, Act, United Times-Picayune Co. v. Sherman Pub. In Co., Socony held States, Supreme Court United States Vacuum Oil supra, v. 1940, ad- 811, 150, L. plan for commercial U.S. 60 S.Ct. that a unit rate evening 1129; vertising morning Ed. Co. v. and International Salt States, 1947, 392, the anti- 68 S. papers United invalid not argues agreement, 12, revers- tying Ct. 92 L.Ed. a trust as laws fixing charges consid- ing price Court ter- when court. the lower n at a position defendant ritorial division of a market exist ered advertising market product local level never on a which relevant commercial holding commerce, carefully its enters the restricts flow interstate per nevertheless a se violation Section facts. out, 1 has been made that federal States, In Lorain Journal jurisdiction attaches, 96 L.Ed. 72 S.Ct. 342 U.S. amount of commerce affected interstate restraint Supreme found a Court by such restraints is immaterial. The publisher of trade when in interstate qualitative illegal per so-called test of the only daily newspaper in commu- one the nity operate se doctrine does itself advertising accept refused extend federal under Sec anyone radio sta- on a advertised who purely tions 1 and 2 to applied local restraints finding community, neighboring in a tion product at a a local level to which practice would this that the effect never into enters of interstate flow station, put an radio argument commerce. The made here In Green- broadcaster, of business. out rejected appellant squarely D.C.Nev.1952, has been McCarran, spun v. Vegas F.Supp. 662, concerted withdrawals Court Las Merchant large gambling advertising by establish- States, Cir., Plumbers Ass’n United Vegas news- Las one of two ments from 732, 747, 210 F.2d where this Court held papers of interstate said: of interstate commerce to be a restraint “True, price fixing conspiracy attempt put out an operates on or within the flow Evening Newspaper In of business. of interstate commerce affects that Publishing Newspaper Car- Co. v. Allied commerce as a matter of law. But Cir., 1959, re- riers, 263 F.2d fixing price conspiracy purely aat by delivery to handle dealers fusal not, local interstate level does plaintiff plaintiff’s newspapers unless law, as a matter affect the flow delivery using newsboys home ceased purely commerce. Whether a restraint of trade af- to be a was held fecting conspiracy or intrastate unreason- commerce, it because ably restrains interstate commerce the interstate interfered with business primarily question, e., factual i. commercial dis- news and price fixing conspiracy the local does *9 In all above re- cases a semination. substantially affect flow inter- straint of interstate commerce was found commerce? If state is answer juris- determinative of federal which only yes, then are we concerned In of the above cases did none diction. price-fixing the effect of hold, contends, appellant as the Court fact, per se In doctrine. unless character of the news- that the interstate finding there is that the local as a whole was the deter- business complained activities intrastate jurisdiction. ming for federal factor alleged in the and as indictment substantially [complaint] Appellant contends that the affected dis failing ju- commerce, to take interstate there is no erred into trict 332 newsprint members,
risdiction in district court over
chase
for its
alleged Sherman Act violation.”
there
anything
appellees
was no evidence that
did
newsprint
to interfere with
question of
There remains the
purchases by
Newsprint
Consolidated.
activity
pub
whether the
intrastate
only
many ingredients
is
one of
in a
lishing legal
interstate
notices affects
newspaper,
separate product
which is a
though
commerce even
it is not in the
ingredients
from the
posed. Newsprint
of which it is com-
flow of commerce. It is clear that some
product
is
not
in-
wholly
by parties
neither
activities
volved in this case.
engage
of whom
in interstate commerce
may
judge
that
found
nevertheless
district
affect
com
Corp.
product
adver
control of
merce. White Bear Theater
v.
tising
Corp., Cir., 1942,
offered
in the relevant market
State Theater
129 F.
8
gain
appellees
foothold to
control
2d
“If
is
commerce no
it
pinch,
in national dis
that
of the interstate markets
feels
it does not matter
play advertising,
operation
applies
how
news dissemination
local the
newsprint,
competitors in
squeeze.”
the chief
the
Sportswear
Women’s
since
United States v.
Ass’n, 1949,
products metropolitan
336
these
Mfrs’
U.S.
—
depend
publication
714, 716,
69
—did
333 any commerce, com- line of properly where district In our view the country, any of the merce section the activities of the effect concluded that acquisition, of such mar- the effect such the local appellee assets, such use of or of the stocks or in which activities interstate ket those granting voting or stock en- also appellees were Consolidated may non-existent, proxies otherwise, sub- be or gaged were indirect stantially competition, or to lessen in the felt effects were and no sustantial ”** monopoly. pur- to tend to create a newsprint markets interstate advertising, display chase, national 18. 15 Title U.S.C.A. § cir- national dissemination news ' noted It is to be culation. pro language is to plain of the statute argee the statement We with corporation acquisition hibit the no case district court that capital another of the or assets stock Klor’s, Inc. creeping monopolization. See com corporation any line of “where in Inc., 1959, Broadway-Hale Stores, 359 v. country, any merce in section of 741, 705, 207, L.Ed.2d * * 79 3 * U.S. S.Ct. may acquisition effect People’s Burners, Inc., Gas Radiant substantially competition, or to lessen be al., Light Company et & Coke (Italics monopoly.” to create a to tend 5 L.Ed.2d S.Ct. added.) purpose enactment monopolistic cope Section was de- that “Even were states incipiency, which tendencies in their fendants’ activities not violation beyond of the the reach Sherman U.S.C., Plain- Sections 1 and of Title judicially interpreted. Amer Act See can recover tiff on behalf of Consolidated Sugar Crystal Co. Cuban-Amer ican injury clear for the caused defendants’ Co., F.2d Cir., ican S. 18 Title 15 U.S.C.” violation of Section Attorney Report Gen also Appellant complains the trial court Study eral’s National Committee 18 as- did not even consider the Section 1955, page Laws, pect applicable March Anti-trust of the 18 in case. Section gener recognize seq. that the parts We et is as follows: language and of Act al of the Sherman engaged corporation “No in com- designed by Clayton Con Act was directly acquire, merce shall or in- gress powers to exercise its directly, any part or the whole Constitution, of the Commerce Clause capital the stock or other share U.S.Const, 1, 8, art. cl. fullest to the § corporation subject juris- no to the extent, nevertheless, it must be interstate diction of the Federal Trade Com- pinch, com- commerce which feels the or acquire mission shall the whole or petition in interstate commerce which any part of the of another assets may substantially lessened, or where be engaged corporation also in com- tendency is a there toward the creation merce, any where line of com- monopoly commerce, any country, merce section of the provisions before said sections be- may acquisition the effect of such applicable. come substantially competi- to lessen tion, or monopoly. to tend to create a view, language In our way corporation in18 no acquire, “No Section indicates shall di- Con- gress rectly apply provisions indirectly, intended to -, the whole or purely part wholly that Act stock activities share n capital corporation subject to a local intrastate and no directed relating market and product not in flow of Federal acquire commerce and where Commission shall the ef- Trade any part on interstate activities in whole or fects assets of n engage corporations engaged insubstantial, parties one or more are incon- *11 334 appellees’theory fortuitous, non- under com sequential if not of interstate genuine any merce a issue existed as
existent. material concerned fact. We are not judgment of the district with the existence of a fact issue affirmed. appellant’s theory com of interstate Rehearing. On Petition for merce, rejected by which was the district Walling court. See Richmond Screw v. PER CURIAM. 780; Co., Cir., 1946, Anchor Amaya F.2d March opinion An herein on was filed Co., v. Stanolind Oil & D.C. Gas 8, judgment 1961, affirming S.D.Tex.1945, 181, F.Supp. affirmed dismissing want of for Cir., district court 554; Moore, 158 F.2d Fed jurisdiction ac- federal antitrust a civil Practice, 6, 56.13, eral page Vol. 2092. § tion. We are satisfied from our reexamination gen of the record that there petition appellant as- exists no rehearing, On for any uine issue as to material fact under serts that we in our characteriza- erred appellees’ summary judg motion for appeal procedural tion of the issues on ment appellees and that respect application were entitled to and in to the judgment of dismissal opinion. We of the action as rules of law stated in our a matter of law. have reread in this the voluminous record may case and concede been that we have We have re-examined con- holding in error appellant, in ef- tentions that we application erred in the fect, separate principles consented to a trial be- of law, persuad- but are not separated change fore the court on the issue of ed to expressed the views in our jurisdiction. however, opinion. conclusion, This require judg- does not a reversal of the petition rehearing denied. ment. timely Appellees motion made a summary judgment on the issue
for a jurisdiction. cor
If the district court
rectly en were concluded summary judgment, appellant
titled to a deprivation complain of a cannot Fidelity Deposit jury & Co. of trial. 1902, 187 Maryland States, United v. 194; Lindsey S.Ct. L.Ed. C. A. PAGE CO., Inc., PUBLISHING 899; Cir., 1945, Leavy, F.2d corporation, Appellant, 56.06, Practice, Moore, Federal Vol. § Appellees pages 2037-2042. en al., Telford Appellees. WORK et summary judgment to a on the titled No. 16786. question of federal if no genuine issue existed as to material Appeals States Court of moving party fact and if the en Ninth Circuit. judgment titled as a matter of law. March Rule Federal Rules of Proce Civil Rehearing May 3, 1961. Denied dure, 28 U.S.C.A. Two different theories in presented commerce were
terstate to the court on the cross
district motions for summary judgment. The district court appellant’s theory
rejected adopted theory. appellees’ We affirmed for the given opinion. Thus, our reasons only question now before us is whether