Practice AreasAttorneysClientsReported DecisionsOffice LocationHome

Practice Areas

Gibson v. Greater Park City Company

LEXSEE 818 f.2d 722

Monte Gibson, Park City Limited, and Montgomery Real Estate,
Inc., Plaintiffs-Appellants, v. Greater Park City Company, a
Utah corporation, Park City Municipal Corporation, Nick
Badami, Jack W. Davis, Park City Village, Inc., a California
corporation, William Ligety, Arlene Loble, and Ronald Ivie,
Defendants-Appellees

Nos. 84-1829, 84-2209

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

818 F.2d 722; 1987 U.S. App. LEXIS 6042; 1987-1 Trade
Cas. (CCH) P67,552; 8 Fed. R. Serv. 3d (Callaghan) 369

May 7, 1987, Filed

PRIOR HISTORY:
[**1] Appeal from the United States District Court for the District of Utah,
D.C. No. C-81-0823W.

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff appealed decision of United States District Court
for District of Utah granting summary judgment favoring defendants in
plaintiffs' suit alleging defendants violated federal antitrust and civil rights
laws by conspiring to prevent development of plaintiffs' property with
condominiums and retail shopping. Defendants appealed award of deposition costs
to plaintiffs.

OVERVIEW: Plaintiffs filed suit against defendants accusing them of violating
federal antitrust and civil rights laws for conspiring to prevent plaintiffs'
plan to develop their property. District court granted defendants' motion for
summary judgment and awarded plaintiffs' deposition costs. Both parties
appealed. Summary judgment was affirmed. This was because standard for summary
judgment in an antitrust case required an examination of inferences that could
be drawn from defendants' conduct. Although plaintiffs offered evidence to prove
defendants acted with a conspiratorial motive, defendants offered plausible,
non-conspiratorial explanations for all of actions about which plaintiffs
complained. Therefore, plaintiffs had burden of providing evidence which would
exclude possibility that defendants acted independently, but plaintiffs failed
to do so. So, since independent plausible explanations for defendants' conduct
were presented, and plaintiffs' evidence did not exclude plausibility of
independent action; summary judgment was proper. Moreover, award of deposition
costs was proper because court did not abuse discretion in awarding those costs.

OUTCOME: Summary judgment affirmed because defendants offered plausible,
non-conspiratorial explanations for all of actions about which plaintiffs
complained. Thus, plaintiffs had burden of providing evidence which would
exclude possibility that defendants acted independently. Since, plaintiffs
failed to do so, summary judgment was proper. Award of deposition costs also
proper because court did not abuse discretion.

CORE CONCEPTS
PAGE 2
818 F.2d 722, *; 1987 U.S. App. LEXIS 6042, **1;
1987-1 Trade Cas. (CCH) P67,552; 8 Fed. R. Serv. 3d (Callaghan) 369

Civil Procedure : Summary Judgment or Summary Adjudication :
Summary Judgment Standard
Summary judgment is to be granted if there is no genuine issue of material fact.
Fed. R. Civ. P. 56(c).

Civil Procedure : Summary Judgment or Summary Adjudication :
Summary Judgment Standard
On summary judgment the inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the party opposing the motion.

Antitrust & Trade Regulation : Sherman Act
Civil Procedure : Summary Judgment or Summary Adjudication :
Summary Judgment Standard
Antitrust law limits the range of permissible inferences from ambiguous evidence
in a Sherman Act, 15 U.S.C.S. @ 1 case. Thus, conduct as consistent with
permissible competition as with illegal conspiracy does not, standing alone,
support an inference of antitrust conspiracy.

Antitrust & Trade Regulation : Sherman Act
Civil Procedure : Summary Judgment or Summary Adjudication :
Burdens of Production & Proof
Civil Procedure : Summary Judgment or Summary Adjudication :
Summary Judgment Standard
To survive a motion for summary judgment or for a directed verdict, a plaintiff
seeking damages for a violation of 15 U.S.C.S. @ 1 must present evidence that
tends to exclude the possibility that the alleged conspirators acted
independently. Respondents, must show that the inference of conspiracy is
reasonable in light of the competing inferences of independent action or
collusive action that could not have harmed respondents.

Antitrust & Trade Regulation : Sherman Act
Civil Procedure : Summary Judgment or Summary Adjudication :
Summary Judgment Standard
There is a two-part inquiry for evaluating the propriety of summary judgment in
an antitrust conspiracy case: (1) is the plaintiff's evidence of conspiracy
ambiguous, i.e., is it as consistent with the defendants' permissible
independent interests as with an illegal conspiracy?; and, if so, (2) is there
any evidence that tends to exclude the possibility that the defendants were
pursuing these independent interests?

Civil Procedure : Summary Judgment or Summary Adjudication :
Summary Judgment Standard
The district court relied on Westborough in granting summary judgment. The
appeals court now has the more recent and more authoritative standards
established by the Supreme Court in Matsushita, so the court declines to follow
Westborough Mall.

Civil Procedure : Costs & Attorney Fees : Litigation Costs
Civil Procedure : Appeals : Standards of Review : Abuse of Discretion
The trial court's discretion with regard to what costs in the taking of
depositions are reasonably necessary to the litigation will not be disturbed on
appeal unless abused.

PAGE 3
818 F.2d 722, *; 1987 U.S. App. LEXIS 6042, **1;
1987-1 Trade Cas. (CCH) P67,552; 8 Fed. R. Serv. 3d (Callaghan) 369

COUNSEL:
Joseph M. Alioto of Alioto & Alioto, (Daniel R. Shulman of Gray, Plant,
Mooty, Mooty & Bennett, with him on the briefs), for the Plaintiffs-Appellants.

Gordon Strachan, (James A. Boevers with him on the brief) of Prince, Yeates &
Geldzahler, for Defendants-Appellees Greater Park City Company and Nick Badami.

Stewart M. Hanson, Jr., (Michael W. Homer with him on the brief) of Suitter,
Axland, Armstrong & Hanson, for the Defendants-Appellees Park City Municipal
Corp., William Ligety, Arlene Loble and Ronald Ivie.

Stephen G. Crockett, (Michael M. Later with him on the brief) of Rooker,
Larsen, Kimball & Parr, for the Defendants-Appellees Jack W. Davis and Park City
Village, Inc.

JUDGES:
Seymour and Tacha, Circuit Judges, and Weinshienk, District Judge. *

* The Honorable Zita L. Weinshienk, United States District Judge for the
District of Colorado, sitting by designation.

OPINIONBY:
TACHA

OPINION:

[*723] TACHA, Circuit Judge.

This litigation arose out of attempts to develop a condominium and retail
shopping area at a ski resort in Park City, Utah. Appellants allege that the
appellees violated federal antitrust [**2] and civil rights laws by conspiring
to prevent the development of Gibson's property. The district court granted
summary judgment for all appellees and awarded certain deposition costs to the
appellees. Both rulings are challenged on appeal. This court has jurisdiction
under 28 U.S.C. @ 1291. We must decide whether summary judgment is appropriate
in a case where many of the allegations relate to the motive and intent of the
defendants. We must also decide if the district court abused its discretion in
awarding costs.

I.

Summary judgment is to be granted if "there is no genuine issue of material
fact." Fed. R. Civ. P. 56(c). Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), a case decided by
the United States Supreme Court after the district court entered judgment in
this case, provides the most recent guidance for the application of Rule 56(c)
in an antitrust suit. In Matsushita the Court considered "the standard district
courts must apply when deciding whether to grant summary judgment in an
antitrust conspiracy case." Id. at 1351. The Court stated:

Respondents correctly note that "on summary judgment the inferences to be
drawn from the [**3] underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion." United States v. Diebold, Inc., 369
U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). But antitrust law
PAGE 4
818 F.2d 722, *723; 1987 U.S. App. LEXIS 6042, **3;
1987-1 Trade Cas. (CCH) P67,552; 8 Fed. R. Serv. 3d (Callaghan) 369

limits the range of permissible inferences from ambiguous evidence in a @ 1
case. Thus, in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.
Ct. 1464, 79 L. Ed. 2d 775 (1984), we held that conduct as consistent with
permissible competition as with illegal conspiracy does not, standing alone,
support an inference of antitrust conspiracy. Id., at 764, 104 S. Ct., at 1470.
See also [First National Bank of Arizona v.] Cities Service [Co.], supra, 391
U.S., at 280, 88 S. Ct., at 1588 [(1968)]. To survive a motion for summary
judgment or for a directed verdict, a plaintiff seeking damages for a violation
of @ 1 must present evidence "that tends to exclude the possibility" that the
alleged conspirators acted independently. 465 U.S., at 764, 104 S. Ct., at 1471.
Respondents in this case, in other words, must show that the inference of
conspiracy is reasonable in light of the competing inferences of independent
action or collusive action that could [**4] not have harmed respondents. See
Cities Service, supra, 391 U.S., at 280, 88 S. Ct., at 1588.

Id. at 1356-57. See also Great Escape, Inc. v. Union City Body Co., Inc., 791
F.2d 532, 536-37 (7th Cir. 1986) (affirming summary judgment); Apex Oil Co. v.
DiMauro, 641 F. Supp. 1246, 1254-57 (S.D.N.Y 1986) (granting summary judgment).
Matsushita, [*724] then, establishes a two-part inquiry for evaluating the
propriety of summary judgment in an antitrust conspiracy case: (1) is the
plaintiff's evidence of conspiracy ambiguous, i.e., is it as consistent with the
defendants' permissible independent interests as with an illegal conspiracy;
and, if so, (2) is there any evidence that tends to exclude the possibility that
the defendants were pursuing these independent interests.

The district court in this case granted summary judgment to the defendants
after having exhaustively recounted the events which the appellant alleges
constitute a violation of the antitrust laws. Having independently reviewed the
record in this case, including those factors that appellant alleges the district
court ignored, we agree with the statement of facts in the memorandum decision
and order [**5] of the district court and incorporate it as a part of this
order. Gibson v. Greater Park City Co., No. C-81-0823W, slip op. at 1-68 (D.
Utah Apr. 30, 1984). Therefore, additional recital of the facts in this opinion
is unnecessary.

The district court relied on Westborough Mall v. City of Cape Girardeau, 693
F.2d 733 (8th Cir. 1982), cert. denied, 461 U.S. 945, 77 L. Ed. 2d 1303, 103 S.
Ct. 2122 (1983), in granting summary judgment for the defendants. We now have
the more recent and more authoritative standards established by the Supreme
Court in Matsushita, so we decline to follow Westborough Mall here. Further, it
is unclear from the district court opinion whether the court concluded that
there was no evidence from which a conspiracy could be inferred or whether
Gibson failed to present any evidence that tended to exclude the possibility
that the alleged conspirators acted independently. Our review of the record
shows that evidence upon which the plaintiffs rely is ambiguous. On the basis of
Matsushita, we affirm the grant of summary judgment because Gibson failed to
present any evidence that would tend to exclude the possibility that the
alleged conspirators acted independently.

The standard [**6] for summary judgment set forth in Matsushita requires an
examination of the inferences that can be drawn from the defendants' conduct.
Plaintiffs offered evidence that they claim supports their allegation that the
defendants acted with a conspiratorial motive. This includes evidence that: (1)
PAGE 5
818 F.2d 722, *724; 1987 U.S. App. LEXIS 6042, **6;
1987-1 Trade Cas. (CCH) P67,552; 8 Fed. R. Serv. 3d (Callaghan) 369

Gibson was encouraged to abandon the commercial space planned for his project; (
2) the transit center was located away from Gibson's project; (3) Gibson
encountered problems during the construction of his project; (4) Gibson was
required to provide a specified number of parking spaces for his project; (5)
Gibson was required to provide underground setbacks for his project; (6)
limitations were placed on the height of Gibson's buildings; (7) variances for
the construction of the project were conditioned on approval by the neighboring
landowners; (8) the defendants issued two stop work orders for Gibson's project;
(9) one of the defendants advised that work be done for other defendants "before
they forget how grateful they are;" (10) free ski passes were offered to
numerous city officials; (11) one of the defendants made a contribution to a
local art center designated "In Memoriam M. Gibson;" [**7] (12) it was
contemplated that the capacity of the ski area be limited to 10,000 skiers; (13)
it was uncertain whether any additional parking was needed at the resort; (14)
Davis received approval for the construction of Park City Village; and (15)
Davis acted to assure the viability of the Park City Village project.

Plaintiffs attribute a conspiratorial motive to each of these actions.
Respondents, however, have offered plausible, nonconspiratorial explanations for
each of the actions about which petitioner complains. Park City and its
employees and agents were appropriately concerned about enforcement of the city
codes with respect to parking spaces, height restrictions, traffic patterns,
setback requirements, and construction limitations. Greater Park City
Corporation was appropriately concerned with enforcement of a deed restriction
and settlement agreement and with protection of its own property and easements.
Davis and Park City Village were [*725] appropriately concerned about the
construction and requisite governmental approvals for development of their
property. Appellants argue that Davis was concerned that a rival development on
Gibson's property would threaten Davis' own project, [**8] but we have found
no evidence to suggest that Davis' ability to proceed with the Park City Village
project was in any way dependent on Gibson not proceeding with the development
of his property. The plaintiffs' evidence is as consistent with the defendants'
permissible independent interest as with an illegal conspiracy. Thus, the
evidence is ambiguous as required under the first prong of Matsushita.

Having determined that the evidence presented by the plaintiffs is ambiguous,
we proceed to the second prong of the Matsushita test. Once the defendants
offered evidence of legitimate business reasons for their conduct, the
plaintiffs had the burden of providing evidence which tends to exclude the
possibility that the alleged conspirators acted independently. Matsushita, 106
S. Ct. at 1357. All of the evidence presented by the plaintiffs is ambiguous: it
can support either a permissible or a conspiratorial motive. There is no
evidence that tends to exclude the possibility that the defendants were pursuing
independent interests. Therefore, the independent plausible explanations for the
defendants' conduct bring this case within the Matsushita test for awarding
summary judgment [**9] in a case alleging a conspiracy to violate the antitrust
laws.

II.

The district court awarded to appellees the costs for depositions of their
employees and persons within their control. It is clear from the record that
these depositions were important probative factors in the disposition of the
motion for summary judgment. The district court said:
PAGE 6
818 F.2d 722, *725; 1987 U.S. App. LEXIS 6042, **9;
1987-1 Trade Cas. (CCH) P67,552; 8 Fed. R. Serv. 3d (Callaghan) 369

The court is persuaded that the complexity and seriousness of the legal issues
and factual allegations raised by the plaintiffs made the depositions necessary
to this case. The court relied extensively upon the depositions . . . in
considering and deciding the motions for summary judgment.

Gibson v. Greater Park City Co., No. C-81-0823W, slip op. at 3 (D. Utah, Aug. 1,
1984) (footnote omitted). Thus, the trial judge concluded that the depositions
were necessary to decide the case and appropriate costs should be awarded to the
prevailing party under Fed. R. Civ. P. 54(d). "The trial court's discretion with
regard to what costs in the taking of depositions are reasonably necessary to
the litigation will not be disturbed on appeal unless abused." Moe v. Avions
Marcel Dassault-Brequet Aviation, 727 F.2d 917, 936 (10th Cir.), cert. [**10]
denied, 469 U.S. 853, 105 S. Ct. 176, 83 L. Ed. 2d 110 (1984). In reviewing this
case this court, too, has relied upon the depositions in controversy. Therefore,
we certainly cannot say that the trial judge abused his discretion in allowing
the costs of these depositions.

   

Home Site Map Legal Disclaimer Contact Us

©2010 Strachan, Strachan & Simon P.C., All Rights Reserved.