SSS Enterprises, Inc. v. Nova Petroleum Realty, LLC

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cv-01134-CMH-JFA. Copies to all parties and the district court/agency. [999154323].. [12-2088]

Download PDF
Appeal: 12-2088 Doc: 40 Filed: 07/19/2013 Pg: 1 of 7 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2088 SSS ENTERPRISES, INC., trading as Franconia International Shell; MISHBA, INC., trading as Landmark Shell; O&MK, INC., trading as K Shell Foodmart; HILY, INC., trading as Mt. Vernon Shell; GLOBAL TRADING NETWORK, LTD., trading as Hemkund Exxon, trading as Broad Exxon; NORTHERN VIRGINIA OIL COMPANY, INC., trading as Edsall Park Exxon; FRANCONIA SQUARE, LLC, trading as Franconia Shell; 6948 KING, LLC, trading as Hayfield Exxon; AHZ OF CHANTILLY, INC., trading as Briar Oaks Exxon; BANK SOIL, INC., trading as Vienna Exxon; PS & AS, INC., trading as Seminary Plaza Exxon; ARLINGTON HILLCREST, INC., trading as Arlington Exxon; JEAWAN, INC., trading as Pinecrest Exxon; VAN DORN AUTO SERVICE, INC., trading as Van Dorn Exxon; PRIME AUTO, INC., trading as Woodlawn Shell; METROIL, INC., trading as Watergate Exxon; GEORGETOWN−WISCONSIN, INC., trading as Georgetown Exxon; FLORIDA AVE, INC., trading as Florida Ave. Exxon; D.C. OIL, INC., trading as DC Oil Exxon; N&B COMPANY, LLC, trading as Cleveland Park Exxon; AHMAD & AHMAD ENTERPRISES, INC., trading as East Capitol Exxon; TICUT CORPORATION, trading as Connecticut Exxon; WILFORD R. BOWES FAIRLINGTON TEXACO, INC., trading as Shirlington Shell; SYED A. ALI, Plaintiffs - Appellants, and AAR ENTERPRISES, INC., trading as Alexandria Exxon, trading as Alexandria Exxon North; BAIG OIL, INC., trading as West Side Exxon; JJZ ENTERPRISES, INC., trading as Capitol Hill Exxon; A&H CORPORATION, INC., trading as Hayfield Exxon; ALINA ENTERPRISES, INC., trading as Congressional Exxon, Plaintiffs, v. Appeal: 12-2088 Doc: 40 Filed: 07/19/2013 Pg: 2 of 7 NOVA PETROLEUM REALTY, LLC; NOVA PETROLEUM REALTY, INC.; NOVA PETROLEUM SUPPLIERS, LLC; BURKE PETROLEUM REALTY, LLC; MOUNT VERNON PETROLEUM REALTY; CAPITOL PETROLEUM GROUP, LLC; EYOB MAMO; DAVID CALHOUN; NOVA PETROLEUM SUPPLIERS, INC.; ANACOSTIA REALTY, LLC, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virgina, at Alexandria. Claude M. Hilton, Senior District Judge. (1:11-cv-01134-CMH-JFA) Submitted: June 4, 2013 Decided: July 19, 2013 Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Peter L. Goldman, O'REILLY & MARK, P.C., Alexandria, Virginia, for Appellants. Alphonse M. Alfano, BASSMAN, MITCHELL & ALFANO, CHARTERED, Washington, D.C., for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 12-2088 Doc: 40 Filed: 07/19/2013 Pg: 3 of 7 PER CURIAM: SSS Enterprises, Inc. and 26 other gas station operators in the District of Columbia and Northern Virginia commenced this antitrust action against a group of wholesale distributors, who sold the plaintiffs Shell and Exxon branded gasoline and who, for most of the plaintiffs, leased them the gas stations from which they plaintiffs operated. alleged In their third monopolization, amended attempted complaint, the monopolization, predatory pricing, and discriminatory pricing, in violation of the Sherman Act and related statutes. They also alleged breach of contracts for the maintenance of various gas stations. At a pretrial conference, the district court ordered that the plaintiffs file their expert disclosures, as required by Federal 2012. Rule of Civil Procedure 26(a)(2)(B), by January 27, That rule requires that unless otherwise exempted, the disclosures “must be accompanied by a written report -- prepared and signed 26(a)(2)(B). by the [expert] witness.” Fed. R. Civ. P. The rule also requires that the report contain all opinions of the expert witness and the reasons for them; the facts and data supporting them; the exhibits supporting them; the expert witnesses’ qualifications; a list of prior cases in which the expert witness has testified; and the compensation being provided the witness. See Fed. R. Civ. P. 26(a)(2)(B)(i)- (vi). 3 Appeal: 12-2088 Doc: 40 The Filed: 07/19/2013 plaintiffs failed Pg: 4 of 7 to comply with the deadline established by the court, filing their disclosures on January 31, 2012. have On February 2, 2012, they filed a motion for leave to filed granted. their disclosures late, which the district court The defendants nonetheless moved to strike the late disclosures, not because they were late but because they did not include the experts’ reports. motion. The district court granted that The plaintiffs filed a supplemental expert statement with the reports from two of their three experts and, on March 1, 2012, district filed court, a motion to file those applying the five-factor reports test late. from The Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592 (4th Cir. 2003), denied the motion. After the close of discovery, the defendants filed two motions for summary judgment, arguing, among other things, that the plaintiffs failed to produce “admissible evidence to support any of their Sherman Act or Robinson-Patman Act claims,” and that the plaintiffs failed to produce any admissible evidence to establish damages on their breach of contract claim. The district court granted the motions, entering judgment for the defendants, and this appeal followed. The plaintiffs contend that the district court (1) abused its discretion in excluding the reports of its expert witnesses 4 Appeal: 12-2088 and Doc: 40 (2) Filed: 07/19/2013 erred in granting Pg: 5 of 7 defendants’ motions for summary judgment. As to the district court’s ruling on the expert witness reports, we discretion. conclude that the court did not abuse its The federal rules impose an “automatic sanction” of exclusion of a party’s expert witness for failure to adhere to the requirements set forth in Rule 26(a). See Southern States, 318 F.3d at 595 n.2. (“The Rule 37(c) advisory committee notes emphasize that the automatic sanction of exclusion provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence”) (internal quotation marks and citation omitted). Even though the court gave the plaintiffs within additional time which to file their disclosures, the disclosures were simply noncompliant. The plaintiffs argue that Rule 26(e), providing that the party has a duty to supplement or correct its authorized them to file their reports late. disclosures, But Rule 26(e) supplementation is meant only “to add additional or corrective information,” not to correct the deficient filing. Campbell v. United 2012) States, 470 F. App'x 153, 157 (4th Cir. curiam) (internal quotation marks and citation omitted). the supplemental expert disclosure was not (per Here, supplementing anything -- it was, for the first time, including reports that had been required earlier. 5 Appeal: 12-2088 Doc: 40 Under Filed: 07/19/2013 Rule 37(c)(1), Pg: 6 of 7 the plaintiffs had the burden of justifying their noncompliance by showing that it “was either substantially justified or harmless.” F.3d 593, 602 (4th Cir. 2006). court that showing. in this case the See Carr v. Deeds, 453 But we agree with the district plaintiffs failed to make that See Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278 (4th Cir. 2005). We also affirm the district court’s defendants’ summary judgment motions. present evidence of relevant order granting the The plaintiffs failed to markets, of the defendants’ monopoly power or the probability of their obtaining it, and the defendants’ conduct in excluding competition. their allegations plaintiffs of provided no the defendants’ pricing In addition, on “price information. squeeze,” the Finally, they failed to establish antitrust injury. On the breach of contract claim, the plaintiffs presented no evidence that they were damaged by breach of any of the contracts. While they did present some evidence with respect to lost revenue, they never completed their showing by establishing that lost revenue amounted to lost profit. See Banks v. Mario Industries. of Virginia, Inc., 650 S.E.2d 687, 696 (Va. 2007). The judgment of the district court is accordingly affirmed. We dispense with oral argument 6 because the facts and legal Appeal: 12-2088 Doc: 40 Filed: 07/19/2013 Pg: 7 of 7 contentions are adequately presented in the materials before the court, and argument would not aid the decisional process. AFFIRMED 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?