on file, * * *.' What plaintiff might ultimately have caught through a discovery fishing expedition is irrelevant to the motion presently pending. (In this connection, it may be noted that upon the oral argument counsel for the plaintiff unqualifiedly denied that he had any evidence of a conspiracy, or that he had any specific expectation of finding such evidence.)
Excepting conclusory allegations therein, the complaint as amended, amplified and elaborated by plaintiff's responses to defendant's demands for more definite statement, alleges that Esso, with knowledge of plaintiff's relationship to Cooper-Stainless, and the terms upon which plaintiff had been doing business with the latter, induced that consumer to terminate its relationship with Gold Fuel by selling fuel oil at a delivered price of 10.2 cents per gallon, made up of the basic posted price of 9.9 cents per gallon plus a haulage charge of .30 cents per gallon, which haulage charge was .03 cents below the lowest price at which Gold Fuel could effect delivery to the customer. Assuming as true those allegations of the complaint, do the acts complained of therein constitute violations either of § 2 or of 1 of Title 15 of the United States Code? Gold Fuel contends, if we correctly understand its brief, that by bibbing a price to plaintiff's former customers which was lower than that at which plaintiff was able to purchase and deliver fuel oil as a distributor, Esso attempted to monopolize a part of interstate commerce in violation of § 2, and relies, inter alia, upon Moore v. Mead's Fine Bread Co., 1954, 348 U.S. 115, 75 S. Ct. 148, 99 L. Ed. 145, for support of that contention. That case is inapropos. It was a treble damage suit for violation of section 2(a) of the Clayton Act as amended by the first section of the Robinson-Patman Act (15 U.S.C.A. § 13(a)), and of section 3 of the Robinson-Patman Act (15 U.S.C.A. § 13a). 15 U.S.C.A. 2, which is section 2 of the Sherman Act, was not there involved.
Plaintiff concedes, in response to defendant's demand for a more definite statement, that the monopoly to which the complaint refers does not 'arise out of any combination or conspiracy, but as (sic) an unilateral attempt by Esso to monopolize a part of interstate commerce.' The more definite statement adds that plaintiff 'does not contend * * * that Esso cannot lawfully compete at the retail level, or that it must offer fuel oil to wholesalers and distributors at prices less than that which Esso's consumer-customers pay. The plaintiff contends that Esso can lawfully compete with wholesalers and distributors, so long as it does not offer fuel oil to consumer-customers of such wholesalers and distributors at such unreasonably low prices -- i.e., at less than those at which wholesalers and distributors can buy -- as to evince the purpose of Esso, and to have the effect, to eliminate competition by wholesalers and distributors with Esso for the custom (sic) of consumer-customers, and to destroy preexisting business relationships by such wholesalers and distributors with their consumer-customers, * * *.' This plaint reiterates the charge of unfair competition made in Gold Fuel Service, Inc. v. Esso Standard Oil Company, Chanc.Div.1959, 59 N.J.Super. 6, 157 A.2d 30, in which the complaint was dismissed. Nashville Milk Co. v. Carnation Company, supra, compels dismissal of this contention. Plaintiff asserts that 'competition by Esso at the retail level by unlawful means constitutes in the instant case an attempt to monopolize a part of interstate commerce, whether by sale to the plaintiff's consumer-customers alone at unreasonably low prices, as aforesaid, or by sale to the consumer-customers of wholesalers and distributors other than and in addition to the plaintiff, at unreasonably low prices.' These allegations are conclusory and non-factual.
Neither the complaint nor any of the affidavits submitted on the present motion alleges or discloses that Esso enjoys monopoly power, or that such power was used or attempted to be used in an unlawful manner. Section 2 of the Sherman Act proscribes monopolizing, attempts to monopolize and combinations or conspiracies with another to monopolize any part of interstate commerce. Monopoly power, as contemplated by the language of the section, is the power to control prices or exclude competition. United States v. E.I. Du Pont de Nemours & Co., 1956, 351 U.S. 377, 76 S. Ct. 994, 100 L. Ed. 1264. It is only the combination of power with purpose or intent to monopolize which offends the statute. American Tobacco Co. v. United States, 1946, 328 U.S. 781, 66 S. Ct. 1125, 90 L. Ed. 1575. Klor's v. Broadway-Hale Stores, 1959, 359 U.S. 207, is inapposite here. There is presently no group boycott or conspiracy to monopolize. There is no charge in the complaint as made more definite and certain, nor disclosure in the affidavits upon the present motion that Esso, in bidding a price to Cooper-Stainless which was lower than that which Gold Fuel could meet, manifested or was motivated by a purpose or intent to monopolize the sale of fuel oil in plaintiff's territory. The competition of other large suppliers would not permit such a monopoly. Plaintiff concedes that Esso had a right to sell directly to plaintiff's customers. The customer had a right to seek and obtain the lowest price in the market. It invited bids not only from Esso, but also from other suppliers of equal magnitude, and upon receiving comparable bids, selected that of Esso.
Turning to Section 1 of the Sherman Act, upon which plaintiff also relies for its right to recover here. That section proscribes 'every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, * * *.' I can find among the allegations of the amended complaint as limited or amplified by the more definite statement furnished by the plaintiff, no basis for inferring that defendant has violated section 1 of the Sherman Act. In its response to the defendant's demand that the amended complaint be made more definite and certain, the plaintiff, referring to its charge of combination or conspiracy in restraint of trade, states:
'Basically, the plaintiff's theory is not that it was unable to purchase fuel oil from any supplier at what it regarded as a favorable price. The plaintiff's theory is that it was unable to purchase fuel oil from any supplier at any price less than 10.4, and was thereby unable to compete with Esso Standard Oil Company and the other major supplier bidders for their Cooper-Stainless business.'
Plaintiff adds that
'The parallel action of three major suppliers in bidding at 10.4 and 10.2 respectively would inevitably have the effect of eliminating, not merely restraining, the trade of the plaintiff with Cooper-Stainless, and was made possible by the tremendous financial and industrial interstate resources of the three suppliers. At the time that Esso submitted its bid to the consumers Cooper and Stainless at a price lower than that at which the plaintiff distributor was able to purchase for resale to Cooper and Stainless, two other major suppliers, Cities Service Oil Company and Sinclair Refining Company, submitted bids to Cooper and Stainless at prices which were also lower than that at which the plaintiff was able to purchase for resale to Cooper and Stainless.'
Plaintiff concludes that the
'Parallel actions of Cities Service, Sinclair and Esso purposefully coincided and were the result of prearrangement and understanding by and among Esso, Cities Service and Sinclair, and thus was the result of a combination and conspiracy among them to restrain the trade of the plaintiff with Cooper and Stainless.'
As noted above, upon the oral argument counsel for the plaintiff unqualifiedly denied that he had any evidence that there was any evidence of a conspiracy, other than the charged parallelism; and also denied that he had any specific expectation of finding such evidence. Defendant's affidavits squarely deny the conclusory allegations which plaintiff predicates upon the alleged fact that the three bidding corporations submitted prices with which plaintiff could not compete.
In view of the foregoing facts the allegation of parallel business behaviour is insufficient to support an inference of 'conscious parallelism' such as would support a charge of conspiracy, for as the Supreme Court in Theatre Enterprises v. Paramount Film Distributing Corp., 1954, 346 U.S. 537, at page 541, 74 S. Ct. 257, at page 259, 98 L. Ed. 273, said 'This Court has never held that proof of parallel business behavior * * * itself constitutes a Sherman Act offense.'
The prices of No. 2 fuel oil in the New York marketing area were published daily in the Journal of Commerce. Throughout the period November 18 through december 22, 1958, consumer prices were 0.15 cents per gallon higher than the price f.o.b. supplier's plant. The bid of Esso to Cooper-Stainless was as low as that of any other supplier, but no lower. As explained in the affidavit of Esso's New Jersey Division manager, Esso's 'posted tank wagon and tank transport prices are calculated by evaluating the wholesale commodity market for No. 2 heating oil in cargo lots on the East Coast. To this cargo price is added a differential which is enough to cover out cost of terminalling plus other marketing expenses in order to load tank cars or transport trucks at the rack at our terminals, plus a margin for reasonable return on investment. It would be against the policy of the company for any employee of the company to enter into any combination or agreement with any competitors fixing or relating to prices of its products, and specifically the company did not consult with, agree or combine with any of its competitors to fix the price of fuel oil which was offered to Cooper Alloy Corporation and Stainless Engineering and Machine Works on or about November 6, 1958. * * * Competition petition in the sale of fuel oil at all levels, including to consumers such as Cooper Alloy Corporation and Stainless Engineering and Machine Works, it very vigorous. Major competitors of the company in the New Jersey area include Gulf Oil Corporation, Texaco, Cities Service, Sinclair, Socony Mobil, Hess and Hartol. In addition, there are a number of distributors and jobbers who buy in cargo or barge quantities, the posted prices of which are lower than the posted tank transport and tank wagon prices due to the larger amounts involved, and these distributors and jobbers are thus able to resell in tank wagon and transport quantities in competition with Esso.' This affiant adds that Esso's price to Cooper-Stainless was established as a result of Esso's successful effort to meet the prices of the above named competitors.
'Summary judgments are as applicable to actions under the Sherman Act as they are to any other type of actions, legal or equitable.' United States v. Krasnov, D.C.Pa.1956, 143 F.Supp. 184, 197, affirmed 1957, 355 U.S 5, 78 S. Ct. 34, 2 L. Ed. 2d 21; Associated Press v. United States, 1945, 326 U.S. 1, 65 S. Ct. 1416, 89 L. Ed. 2013. 'Rule 56 authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.' Sartor v. Arkansas Natural Gas Corp., 1944, 321 U.S. 620, 627, 64 S. Ct. 724, 728, 88 L. Ed. 967.
In deciding the present motion, I am called upon to determine not what the facts are, but whether there is a genuine issue of fact material to the plaintiff's right to judgment. I can find no such issue, but am confronted merely with allegations in the language of the statutory sections, and conclusions therefrom, weakly bolstered by the expression of a hope that by some subsequent discovery means an issue of fact may be created, although the period for discovery had expired when this motion was argued.
Finding no genuine issue of fact, I am impelled to the conclusion that the defendant is entitled to judgment as a matter of law, and an order therefor may be presented.