JELD-WEN, INC. v. AGC AMERICA, INC., et al

Filing 159

ORDER denying without prejudice 138 and 142 Motions for Partial Summary Judgment. Signed by Judge Donetta W. Ambrose on 9/4/14. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
IN RE: FLAT GLASS ANTITRUST
LITIGATION (II)

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Misc. No. 08-180
MDL No. 1942

JELD-WEN, INC.,

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Civil Action No. 11-658

Plaintiff,
vs.
AGC AMERICA, INC., et al.,
Defendants.
AMBROSE, Senior District Judge

OPINION
AND
ORDER OF COURT
Defendants, AGC America, Inc., AGC Flat Glass North America, Inc., Guardian
Industries Corp., Pilkington North America, Inc., and Pilkington Holdings, Inc., filed a Motion for
Partial Summary Judgment or, in the alternative, Motion to Strike Expert Damages Report.
(ECF Nos. 138 and 142).1

Therein, Defendants argue that partial summary judgment is

appropriate as to Plaintiff’s umbrella theory of damages since the umbrella theory of damages is
not viable and, thus, request that this Court limit the total overages for which Plaintiff may
recover. Id. Alternatively, Defendants seek an order striking portions of the damages expert
report of Dr. Leffler related to the umbrella theory since damages thereunder are not
recoverable and because Defendants were not on notice that Plaintiff was seeking such
damages until the time it received Dr. Leffler’s report. Id. In opposition, Plaintiff argues that a
summary judgment is procedurally inappropriate. (ECF No. 148). Additionally, Plaintiff submits
that the umbrella theory of damages is permissible in this case. Id. Finally, Plaintiff submits that
1

The parties submitted both redacted versions and sealed unredacted versions of all filings related to the
instant motion. See, ECF Nos. 138-154. For purposes of this opinion and order of court, from hence
forward, I will refer only to the redacted versions of the filings.

it disclosed that it was seeking said damages. Id. Defendants filed a Reply Brief thereafter.
(ECF No. 156). The issues are now ripe for review.
After careful consideration of the submissions by the parties and as more fully set forth
below, the Defendants= Motion for Partial Summary Judgment (ECF Nos. 138/142) is denied.
A.

Standard of Review

Summary judgment may only be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). Rule 56 mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against the party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
In considering a motion for summary judgment, this Court must examine the facts in a
light most favorable to the party opposing the motion.

International Raw Materials, Ltd. v.

Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to
demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer
Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987).

The dispute is genuine if the evidence is such

that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it might affect the outcome of the
suit under the governing law. Id. Where the non-moving party will bear the burden of proof at
trial, the party moving for summary judgment may meet its burden by showing that the
evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry
the non-movant’s burden of proof at trial. Celotex, 477 U.S. at 322.
Once the moving party satisfies its burden, the burden shifts to the nonmoving party,
who must go beyond its pleadings, and designate specific facts by the use of affidavits,
2

depositions, admissions, or answers to interrogatories showing that there is a genuine issue for
trial. Id. at 324. Summary judgment must therefore be granted “against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” White v. Westinghouse Electric
Co., 862 F.2d 56, 59 (3d Cir. 1988), quoting, Celotex, 477 U.S. at 322.
B.

Motion for Partial Summary Judgment

The essence or core of the challenge brought by Defendants centers around the
damages recoverable by Plaintiff. (ECF No. 139). Plaintiff’s damages expert, Dr. Leffler, issued
a report claiming Plaintiff is entitled to damages based, in part, on purchases from Cardinal
Glass Industries (“Cardinal”)2 under the umbrella theory of recovery of damages.3 Defendants
argue that both the Third and Ninth Circuits have rejected damages under the umbrella theory
of recovery because such damages are unreasonably speculative. (ECF No. 139, pp. 5-8). As
such, Defendants argue summary judgment on this issue is appropriate.4 Id.
In response, Plaintiff initially argues that a motion for summary judgment is the improper
procedural method to raise such an argument. (ECF No. 148, pp. 10-11). The proper method
to raise an issue related to the proper measure of damages, Plaintiff submits, is through a
motion in limine. Id. I agree with Plaintiff. A motion in limine is defined as A[a] pretrial motion
requesting [the] court to prohibit opposing counsel from referring to or offering evidence on
matters...prejudicial to the moving party,@ and the >[p]urpose of such motion is to avoid injection
2

Cardinal is not a named defendant in the case and is not referenced in the Complaint as a co-conspirator
or otherwise. See, ECF No. 1.
3

Under the umbrella theory of damages recovery in price fixing conspiracy cases, a party seeks to
recover damages from third party purchases resulting from harm flowing from the price fixing conspiracy,
even though the price fixing defendants did not receive the gains and were not involved in their
competitor’s pricing decisions. See, In re Automotive Parts Antitrust Litig., Nos. 2:12-cv-00302 and 00303,
2014 WL 2993742, *9 (E.D. Mich. July 3, 2014), citing, In re Coordinated Pretrial Proceedings in
th
Petroleum Products Antitrust Litig., 691 F.2d 1335, 1339 (9 Cir. 1982); In re Lower Lake Erie Iron Ore
Antritrust Litig., 998 F.2d 1144 (3d Cir. 1993).
4

For clarification purposes, I note that this is not a Daubert Motion challenging the methods of estimating
damages or disputing the evidence underlying Dr. Leffler’s calculations. (ECF No. 156, p. 4). Rather it is
a question of the damages recoverable by Plaintiff.
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into trial of matters which are irrelevant, inadmissible, and prejudicial....@ Black=s Law Dictionary
1013 (6th ed. 1990).

Otherwise stated, the purpose of a motion in limine is Anarrow the

evidentiary issues for trial and to eliminate unnecessary trial interruptions.@

Bradley v.

Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990), citing In re Japanese Elec. Prod.
Antitrust Lit., 723 F.2d 238, 260 (3d Cir. 1983), rev=d on other grounds sub nom., Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574 (1985). Defendants’ Motion does not resemble a
motion for summary judgment as the standard is set forth above. Bradley, 913 F.2d at 1069
(A[S]ummary judgment motion...is designed to eliminate a trial in cases where there are not
genuine issues of fact....@). In fact, contrary to Defendants’ position, the Third Circuit case cited
by Defendants in their Reply Brief further supports that summary judgment issues turn on
questions of fact. See, Vitalia v. Sun Constructors, Inc., 481 Fed. Appx. 719, 729 (3d Cir. 2012)
(Third Circuit determined that there were no genuine issues of material fact regarding reckless
indifference or malice such that punitive damages were not recoverable.). Defendants’ instant
Motion, however, does not involve an issue of fact but, rather, squarely involves a ruling on the
permissible damages allowable and admissibility of evidence related thereto typically
considered on an in limine basis. See, ECF No. 139.
Defendants have already submitted a proper motion for summary judgment motion and
said motion had been long since ruled upon. (ECF No. 108).

I retained jurisdiction after my

ruling on the summary judgment motion to permit expert discovery on damages. I decline,
however, to rule upon any motions sounding in limine that relate to damages and the
admissibility of evidence related thereto. Said motions are more properly brought before the
court of original jurisdiction trying the case. As such, I will deny Defendants’ Motion without
prejudice to be reasserted before the trial judge once this MDL case is closed and remanded
back to its original jurisdiction.
An appropriate order shall follow.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
IN RE: FLAT GLASS ANTITRUST
LITIGATION (II)

)
)

Misc. No. 08-180
MDL No. 1942

JELD-WEN, INC.,

)
)
)
)
)
)
)
)
)

Civil Action No. 11-658

Plaintiff,
vs.
AGC AMERICA, INC., et al.,
Defendants.
AMBROSE, Senior District Judge

ORDER OF COURT
AND now, this 4th day of September, 2014, it is ordered that Defendants’ Motion for
Partial Summary Judgment or, in the alternative, Motion to Strike Expert Damages Report
(ECF Nos. 138 and 142) is denied without prejudice.

BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

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