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UNPUBLISHED PER CURIAM OPINION filed.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]
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UNPUBLISHED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.
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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.
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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).
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The
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plaintiffs
failed
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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
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and
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(2)
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erred
in
granting
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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.
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Under
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Rule
37(c)(1),
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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
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because
the
facts
and
legal
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contentions are adequately presented in the materials before the
court, and argument would not aid the decisional process.
AFFIRMED
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