This is an appeal from a summary judgment entered on March 30, 1981 in the United States District Court for the Southern District of New York (Honorable Gerard L. Goettel, District Judge ), dismissing their claims under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, and 2, and Section 3 of the Clayton Act, 15 U.S.C. § 14. Affirmed.
Before Moore, Timbers and Van Graafeiland, Circuit Judges.
For three years in the early 1970's, Adam Opel, A.G. ("Opel"), the wholly-owned German subsidiary of General Motors Corporation ("GM"), sold components and engines to Frank Reisner, the owner of a small specialty automobile manufacturing company in Italy, Intermeccanica Automobili, for use in manufacturing a high performance sports car called the Indra. Following Opel's termination of the relationship in 1973, Reisner and his American importer, Indra Imports, Inc., brought this antitrust action under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and Section 3 of the Clayton Act, 15 U.S.C. § 14, claiming that Opel had tied sales of Opel components to sales of engines and had conspired with GM to prevent Reisner from exporting the Indra to the United States. After five years of discovery, the District Court for the Southern District of New York (Goettel, J.), entered summary judgment for the defendants GM and Opel on March 30, 1981, and dismissed the complaint. Reisner v. General Motors Corp., 511 F. Supp. 1167 (S.D.N.Y. 1981). The district court viewed Reisner's amended complaint as asserting essentially a tying claim, and it found that Reisner had failed to establish the essential elements of that claim. Plaintiffs do not appeal from the dismissal of their tying claims under Section 3 of the Clayton Act, but argue that the district court improperly dismissed their claims under Section 1 and 2 of the Sherman Act. Specifically, Reisner argues that GM, Opel, and Reisner's European distributor, Bitter GmbH & Co., engaged in a group boycott to prevent the importation and sale of the Indra in the United States. The district court found meritless the boycott conspiracy allegation, and denied Reisner's motion to file a second amended complaint setting forth such an allegation. Finally, the district court found that plaintiffs had "withdrawn" their monopolization claims, and so it held moot defendants' motion to preclude evidence not already in the record regarding these claims. For reasons set forth below, we affirm.
On this motion for summary judgment, we have drawn the facts of the case from the discovery record and the affidavits submitted by the parties. Where the evidence is susceptible of different inferences, we have taken the reasonable inference most favorable to the plaintiffs, against whom summary judgment was granted. However, we have disregarded those factual claims made by Reisner after GM moved for summary judgment, where those claims contradict statements made previously by Reisner at his deposition, in his affidavits, and in response to defendants' interrogatories. See Schwimmer v. Sony Corp. of America, 637 F.2d 41, 45-46 (2d Cir. 1980); Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969).
In 1970, Reisner's company, Intermeccanica Automobili, was manufacturing a sports car with a Ford engine called the Italia. Reisner produced approximately 100 Italias per year, most of which he exported to the United States. The bulk of the remainder he sold in Europe through his German distributor, Erich Bitter. Although Reisner sold a total of over 300 Italias in the United States, his American distributors eventually became disenchanted with the car. In this setting, Reisner began negotiations with Opel in September 1970 about the possibility of constructing a specialty sports car with Opel components.
Negotiating with Reisner on behalf of Opel was Robert Lutz, Opel's general sales manager and a member of the Opel board of directors. Lutz was initially interested in Reisner using Opel Diplomat parts in constructing the Italia. The Diplomat had a stodgy image in Germany, and Lutz thought that the sale through Opel dealers of a high performance Italian sports car made with Diplomat parts would generate favorable publicity and showroom traffic for the Diplomat. Thus, at a meeting held on September 4, 1970, at Opel headquarters in Russelsheim, Germany, Lutz, Reisner, and Bitter agreed orally that Reisner would design a car to be built around Opel components. This agreement was never reduced to writing. They arranged that Reisner would build a prototype and two cars in time for the Geneva Auto Show the next year.
Bitter was brought into the deal as Reisner's German distributor, through a new company set up for this purpose, Bitter GmbH & Co. To further insure Bitter's interest in the project, Reisner arranged to have all the Opel components and engines sold directly to Bitter GmbH & Co., which they then supplied to Reisner. With minor exceptions, all the sales of parts and engines were handled in this manner.
At some point, the parties agreed that Reisner would build an all new car using Opel parts and engines. This car was called the Indra. The Opel components to be used in the Indra included drive train components, the brakes, steering wheel and column, and the suspension. Lutz agreed also to supply Reisner with the engine used in the Opel Diplomat, the Chevrolet 327 cubic inch displacement (CID) engine. This was a "dirty" engine, that is, it did not satisfy the emission control requirements for sale in the United States. Reisner was interested eventually in exporting the Indra to the United States, and he secured from Lutz a promise that Opel would provide the "clean" 350 CID engines used in the Corvette. Specifically, Lutz told Reisner that "I am pushing for that engine, and as a temporary measure use the 327. And I'll make sure you get the 350". Despite Lutz's promise, at no time did Opel use the 350 CID engines in its own cars or have any available for sale to Reisner or to anyone else.
In any event, the Indra could not have been exported to the United States in 1970 because the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381 et seq., imposed safety requirements on cars sold in the United States that the Indra did not satisfy. Not until late 1972, when the "Checker Amendment" was enacted, providing an exemption for manufacturers of fewer than 10,000 cars per year, did it become possible for Reisner to export the Indra to the United States. To do so, however, required a "clean" engine, and the Indra equipped with the 327 CID engine did not meet the Federal emission standards.
Following the meeting with Lutz and after further consultations with Opel personnel, Reisner set up a production line for the Indra. To do so, he had to dismantle the production line for the Italia. The first Indra was shown at the Geneva Auto Show in the spring of 1971 where it attracted considerable favorable publicity and many orders. However, many of the early Indras were defective and dealer enthusiasm fell off. Nonetheless, 78 Indras were manufactured in 1971-72 and sold in Europe. All were equipped with the 327 CID engine.
Reisner first attempted to acquire the "clean" 350 CID engine in the spring of 1972, when it began to appear that the Checker Amendment might pass. Reisner's first contact was with General Motors Italia SpA, the Italian subsidiary of GM. On May 18, 1972, Reisner sent a letter to Ing. E. Brunati at GM Italia stating that Reisner produced about 150 cars per year and would like to purchase the 350 CID engines in lots of twenty. At that time, and indeed since 1965, the policy of GM's Chevrolet Division was not to sell engines on an original equipment basis in lots of less than 200.
Reisner's letter was referred to William Drury of General Motors Overseas Operations, which managed GM's overseas business interests in the early 1970's. Drury consulted with Rudy Boniface, the new director of sales at Opel, who told Drury that Reisner could not meet the minimum sales requirement. Drury next consulted with the manager of the Special Products Section of Chevrolet, which made the 350 CID engines in question, and he confirmed that Chevrolet continued to require a minimum order of 200 engines. Accordingly, on July 2, 1971, Drury wrote to Boniface at Opel, directing him to inform Reisner that Reisner's request to purchase the 350 CID engines in lots of twenty failed to satisfy the minimum purchase requirement. On July 28, 1972, Opel sent a letter to Reisner that stated: "Because of the low volume involved your Company will not be able to qualify for OE (original equipment) status with Chevrolet". However, the letter went on to assure Reisner that Opel would continue to supply him, through Bitter GmbH & Co., with the Opel engines and components that it had supplied in the past.
Undaunted, plaintiffs continued their efforts to purchase the "clean" 350 CID Corvette engine, without which they could not export the Indra to the United States. In early 1973, Joseph Vos, who became president of plaintiff Indra Imports, Inc. after its incorporation in 1973, made a series of phone calls to General Motors personnel in the United States to inquire whether Reisner could purchase a ...