The opinion of the court was delivered by: Will, District Judge.
This action arises out of defendant Texaco's decision not to
renew its distributorship contract with plaintiff South End Oil
Company, Inc. (South End) and its refusal to sell to the
plaintiff thereafter, except on the less favorable terms offered
"consumer" accounts. At the time of termination, South End owed
Texaco approximately $14,000, for which Texaco subsequently filed
suit in the state courts and secured a judgment.
South End's complaint is based on §§ 1 and 2 of the Sherman
Act, 15 U.S.C. § 1 & 2 and § 2(a) of the Clayton Act,
15 U.S.C. § 13(a). Plaintiff seeks recovery of treble damages
alleging the following violations by Texaco:
(1) restricting and attempting to restrict sales by South End
to certain of its customers who resold Texaco products at
(2) controlling or attempting to control South End's prices;
(3) compelling or attempting to compel South End to dictate the
retail price at which its customers resold Texaco products; and
(4) seeking a monopoly in its (Texaco's) products in the area
in which South End made its sales.
Plaintiff alleges that Texaco, in pursuit of these goals, limited
the quantities of oil it would sell to South End; delayed
delivery of products to South End; refused to sell products to
South End; and, finally, terminated the distributorship contract.
In addition, South End claims that Texaco unlawfully
discriminated in price between it and its competitors (a) with
respect to sales made prior to the termination of the contract
and (b) with respect to proposed sales after the termination.
Texaco has moved for summary judgment, basing its motion on the
depositions of plaintiff's president (Eustace) and auditor
(Toomire), as well as its own sworn answers to the
interrogatories posed by the plaintiff.
The Court rarely is disposed to grant a motion for summary
judgment where there are substantial issues of fact raised by the
pleadings. The instant case is exceptional since an examination
of the pleadings, the lengthy depositions and the defendant's
sworn answers to interrogatories reveal uncontroverted facts
which warrant and require the granting of the motion.
The Alleged Price Discrimination
Plaintiff makes two allegations of price discrimination. The
first, alleging sales to competitors at lower prices during the
distributorship period, is admittedly based on hearsay and the
intuition of plaintiff's president. Eustace states that he
"heard" that Lambie and Rasmussen (a competing Texaco
distributor) was being given an additional five per cent
discount. He states that a second distributor told him that he
"thought" that South End could not purchase Texaco oil as cheaply
as he could. Finally, Eustace relates that competitive Texaco
distributors made sales to "his" accounts. Assuming that a change
in consumer allegiance could only have been occasioned by a lower
price, he infers that his competitors were purchasing on more
Responding to this charge, Texaco has filed data culled from
its sales records, showing all purchases by distributors
identified by South End as its competitors, the amounts purchased
and the price charged. This information is included in Texaco's
answers to plaintiff's interrogatories and is sworn to be a
complete and accurate résumé of the company's ...