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MAIER-SCHULE GMC, INC. v. GMC

May 6, 1994

MAIER-SCHULE GMC, INC., Plaintiff,
v.
GENERAL MOTORS CORPORATION (GMC TRUCK AND BUS GROUP), VOLVO WHITE TRUCK CORPORATION, VOLVO GM HEAVY TRUCK CORPORATION, BUFFALO TRUCK SALES & SERVICE, INC., THAGE BERGGREN, KENNETH KACZMAREK, RICHARD B. GURLEY, NICHOLAS BODNAR, and THOMAS B. BOWEN, Defendants.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

INTRODUCTION

 Presently before this Court are the motions of defendants General Motors Corporation ("GM"), Volvo White Truck Corporation ("White") and Volvo GM Heavy Truck Corporation ("VGM") for summary judgment pursuant to Fed. R. Civ. P. 56 on plaintiff's demands for injunctive and declaratory relief and punitive damages.

 In support of their motions, defendants have submitted the following papers: a Notice of Motion by GM, incorporating GM's statement of undisputed facts submitted in connection with GM's motion for summary judgment filed on February 21, 1992 ("GM Facts"); a Memorandum of Defendant General Motors Corporation in Support of its Motion for Summary Judgment on Claims for Relief other than Compensatory Damages ("GM Memo"); a Reply of Defendant General Motors Corporation ("GM Reply"); a Notice of Motion for Summary Judgment by White, which incorporates the affidavits and memoranda filed by the other moving defendants; a Combined Affidavit of Marilyn A. Hochfield, Esq. and Statement of Undisputed Facts ("Hochfield Affid."); a Notice of Motion by VGM, with exhibits, including portions of a deposition of Nelson Schule ("Schule Dep."), portions of an affidavit of Elmo Sergo ("Sergo Affid."), portions of an affidavit of Jerry A. Gambino ("Gambino Affid."), and portions of an affidavit by Nelson Schule ("Schule Affid."); and a Memorandum of Law In Support of Defendant Volvo GM's Motion for Summary Judgment ("VGM Memo").

 In opposition to defendants' motions, plaintiff has submitted a Memorandum in Opposition to Summary Judgment ("P. Memo"), to which plaintiff has attached, among other things, a copy of its June 1, 1992 Statement in Response to General Motors' Claims of Undisputed Material Facts ("P. Facts"), which was submitted in opposition to defendants' prior summary judgment motions, and a copy of its July 23, 1993 Memorandum of Law in Opposition to Defendants' Motion to Enter Final Judgment and in Reply to Defendants' Opposition to Plaintiff's Request for Certification.

 Upon consideration of all these submissions, and for the reasons discussed below, defendants' motions for summary judgment will be granted, and final judgment will be awarded to these defendants, as well as defendants Berggren, Kaczmarek, and Gurley, pursuant to Fed. R. Civ. P. 54(b).

 PROCEDURAL BACKGROUND

 Plaintiff possessed a franchise to distribute GM trucks in Western New York and Northern Pennsylvania. Moreover, plaintiff alleges that it had rights under light, medium, and heavy duty truck "addenda", which permitted plaintiff to distribute these individual grades of trucks. Plaintiff alleges that each addendum constituted a separate and distinct "franchise", as that term is defined in the Automobile Dealers' Day in Court Act *fn1" and the New York State Franchised Motor Vehicle Act. *fn2" Plaintiff charges that when defendants GM and Volvo joined to create the joint venture VGM, they unlawfully conspired to terminate plaintiff's rights under the heavy duty addendum in bad faith, and to award a VGM franchise to a competing dealer, defendant Buffalo Truck Sales & Service, Inc. ("Buffalo Truck"). Furthermore, plaintiff seeks to hold defendants jointly responsible for certain actions taken by GM in connection with GM's cancellation of the heavy duty addendum, and its provision of discounts on the sales of heavy duty trucks. Plaintiff asserts claims under the following statutes and common law causes of action: (1) the Franchise Act; (2) the Dealers' Act; (3) New York State General Business Law § 197; breach of contract; Section 1 of the Sherman Act, 15 U.S.C. § 1; Section 2 of the Sherman Act, 15 U.S.C. § 2; Section 3 of the Clayton Act, 18 U.S.C. § 14; the Robinson-Patman Act, 15 U.S.C. § 13; New York State General Business Law § 340 (the "Donnelly Act"); the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.; the New York State Uniform Commercial Code, N.Y.U.C.C. § 2-306(2); interference with contractual relations; and tortious interference with advantageous business relations.

 On January 5, 1988, Hon. John T. Elfvin, United States District Judge for the Western District of New York, entered a Memorandum and Order denying plaintiff's motion for a preliminary injunction. Plaintiff had sought to enjoin defendant GMC from cancelling the heavy duty addendum, and to enjoin defendants from entering into any agreement for the sale or service of GMC trucks or parts in Western New York on terms and conditions more favorable than those available to plaintiff. Judge Elfvin determined that plaintiff had an adequate legal remedy available in the form of damages, and that the injunctive relief sought would impose undue hardships on defendants. Furthermore, Judge Elfvin determined that plaintiff had not demonstrated a likelihood of success on the merits of its case. Plaintiff did not appeal Judge Elfvin's Memorandum and Order.

 On May 4, 1993 this Court entered a Decision and Order ("Decision") resolving the following motions: (1) the motions of defendants GM, VGM, and White for summary judgment pursuant to Fed. R. Civ. P. 56; (2) the motions of defendants Berggren, Kaczmarek, and Gurley (the "individual defendants") to dismiss plaintiff's complaint as against them for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2); and (3) GM's objections to the Report and Recommendation of Hon. Edmund F. Maxwell, United States Magistrate Judge for the Western District of New York, recommending the denial of GM's motion for sanctions against plaintiff for failure to produce expert witness and damages information during discovery. Although this Court determined that certain of plaintiff's causes of action were sufficient to withstand defendants' motions for summary judgment, this Court further determined that plaintiff had failed to come forward with sufficient proof of its damages in response to defendants' summary judgment motions. This deficiency affected each of plaintiff's causes of action. Therefore, this Court awarded summary judgment to the moving defendants on the issue of damages. Furthermore, this Court determined that plaintiff had repeatedly failed to adhere to the orders of this Court directing plaintiff fully and accurately to answer defendants' interrogatories seeking information on plaintiff's calculation of damages. Therefore, this Court precluded plaintiff from introducing evidence of alleged damages at trial, pursuant to Fed. R. Civ. P. 26 and 37, the Local Rules in this District, and this Court's calendar guidelines regarding discovery orders. *fn3"

 On June 17, 1993 plaintiff filed a notice of appeal to the Second Circuit United States Court of Appeals. Plaintiff supposedly appealed "from so much of said Decision and Order that granted summary judgment to defendants on plaintiff's claim of damages and granted defendants' motion for sanctions, precluding plaintiff from introducing evidence of damages at trial, and otherwise granted relief to defendants, and from each and every interlocutory order entered in this action." In its pre-argument statement to the Court of Appeals, plaintiff contended that the Decision of this Court resulted in "practical finality." (GM Notice of Motion for Entry of Judgment, Exh. 4.)

 Moreover, plaintiff filed a petition to the Second Circuit for a writ of mandamus requiring this Court to vacate its Decision. In its papers accompanying that petition, plaintiff asserted that the Decision of this Court "effectively ended this lawsuit in favor of respondent since petitioner can only proceed to trial with no possibility of recovery of the damages it has undeniably suffered. This is, in effect, a final ruling, terminating petitioner's action in every realistic sense." (GM Notice of Motion for Entry of Judgment, Exh. 3) (emphasis in original.) In addition, during a status conference held before this Court, plaintiff's attorney described the effect of this Court's Decision as follows:

 
Your Honor, where we are as far as the plaintiff is concerned is that the plaintiff's case has been completely destroyed. We have filed a Notice of Appeal with the Second Circuit Court of Appeals on the theory that this is a final order, since this case has been ultimately resolved in -- adversely to the plaintiff.

 (GM Notice of Motion for Entry of Judgment, Exh. 1.)

 On June 17, 1993 Staff Counsel for the Court of Appeals sent plaintiff a Pre-Argument Conference Notice. A note on the Notice reads, "It appears that some of plaintiff's claims are still pending in the District Court. Absent certification, there is no appellate jurisdiction over a non-final decision, FRCP 54(b). The appeal must be withdrawn. . . . (There is no such thing as 'practical finality'.)." The appeal was subsequently withdrawn by plaintiff. On July 16, 1993 the Court of Appeals entered a Mandate denying plaintiff's petition for a writ of mandamus.

 Meanwhile, on June 23, 1993, GM submitted a motion to stay proceedings related to a parallel lawsuit that plaintiff had pending in New York State Supreme Court, Erie County (Index No. 5898-93), in which plaintiff was asserting many of the same causes of action asserted in this federal lawsuit. Defendants White, VGM, Berggren, Kaczmarek, and Gurley joined in GM's motion for a stay. However, on September 16, 1993 New York State Supreme Court Justice Joseph D. Mintz entered an Order and Judgment dismissing plaintiff's state court action.

 On June 2, 1993 plaintiff filed a motion pursuant to 28 U.S.C. § 1292(b) to certify this Court's Decision for appeal, to the extent that the Decision awarded defendants summary judgment on the issue of damages and precluded plaintiff from introducing evidence of damages at trial.

 On June 23, 1993 defendant GM filed a motion for entry of judgment pursuant to Fed. R. Civ. P. 58. In the alternative, GM moved for entry of judgment on any individual claims that this Court found were finally resolved by its Decision. On June 25, 1993 defendant White joined in GM's motion and opposition to plaintiff's motion for certification. On June 30, 1993 defendants VGM, Berggren, Kaczmarek, and Gurley joined in GM's motion and opposition to plaintiff's motion for certification.

 During oral argument on February 2, 1994, counsel for the moving defendants advised this Court that they consented to withdrawing without prejudice their motion for a stay of state court proceedings, subject to re-submission in the event that plaintiff's counsel attempts to resurrect its state court lawsuit.

 Furthermore, this Court discussed with counsel the best methods of advancing this case in an expeditious fashion. It was agreed that, insofar as plaintiff still has pending demands for injunctive and declaratory relief and punitive damages, the moving defendants would file subsequent summary judgment motions addressed to these demands. *fn4" This Court established a scheduling order pertaining to the anticipated motions. Consequently, the moving defendants consented to withdrawing without prejudice their motions for entry of final judgment or, In the alternative, entry of partial judgment, pending this Court's determination of the present summary judgment motions.

 By a Decision and Order entered on March 15, 1994, and a supplemental Order filed on April 1, 1993, this Court denied plaintiff's motion to certify the May 4, 1993 Decision and Order to the Court of Appeals. To the extent that plaintiff seeks reconsideration of that denial in connection with the present motions, plaintiff's request is denied.

 FACTS

 The undisputed material facts have not changed since this Court filed its Decision and Order of May 4, 1993. This Court will assume familiarity with the facts recited in that Decision and will not repeat them here in toto. For the purposes of the present motion, this Court reemphasizes that GM has not manufactured or distributed any heavy duty trucks since December 16, 1988 (see, e.g., Sergo Affid. PP 15-18), and its heavy duty truck manufacturing facilities have been closed. White ceased operations as a manufacturer and distributor of heavy duty trucks on December 31, 1987. Plaintiff ceased all operations in March 1990 (see, e.g., Schule Dep., pp. 1025-32.) Furthermore, Buffalo Truck Sales and Service, Inc. ("Buffalo Truck"), ...


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