available in the market, there is no showing here of any anticompetitive effect. See, e.g., Tunis, 952 F.2d at 728.
The third part of the test -- that the object of and the conduct pursuant to any agreement or conspiracy was illegal -- is not met. Because the Court has determined, based upon a review of all of plaintiff's proffered evidence, that there was no agreement or conspiracy between or amongst any defendants in this matter, an analysis of this prong of the test would be repetitious.
The final question that need be answered is whether plaintiff was injured as a proximate result of any conspiracy. Even assuming, for this prong of the test only, that a conspiracy or agreement existed, plaintiff has pointed to nothing which would suggest that any business losses he sustained was related to any such agreement or conspiracy.
Plaintiff contends that he was injured in several ways.
First, he alleges that the defendants' actions prevented him from beginning operations of Rossi-Florence. Second, he alleges that Rossi Roofing suffered injuries because, during its entire time of operation, it was unable to obtain the roofing and siding materials it needed to compete.
These arguments are unsupported by the record. Damage claims must be presented in a manner that is not based on guesswork or speculation. See Malley-Duff & Assocs., Inc. v. Crown Life Ins. Co., 734 F.2d 133, 148 (3d Cir.), cert. denied, 469 U.S. 1072, 83 L. Ed. 2d 505, 105 S. Ct. 564 (1984). Plaintiff's damages expert, Regan R. Rockhill, CPA, based his damages estimates on a host of assumptions, the most basic assumption being that "the most appropriate way to look at what Mr. Rossi would have done in operating his own business is that he would have essentially followed the business practices he had followed the prior 14 years while at Standard Roofings." Report of Regan R. Rockhill, attached as Exhibit P to Richman Cert., at 2.
The paradigm utilized by Rockhill amounts to nothing more than a "but for" damage model. Rossi had no experience in his own business. Rockhill never analyzed what products were needed to assure a succesful distributorship, and there is no proof as to causation. Perhaps most importantly, Rockhill failed to engage in any analysis regarding the impact of any defendants in the case to determine what harm, if any, was caused by the alleged antitrust actions as opposed to other factors, such as Rossi's management style or general business conditions. Rockhill does not specify any products in his report, and he did not separate any damages attributable to Rossi-Florence and Rossi Roofing.
Where a plaintiff fails to present evidence which provides a sufficient basis for an award of damages, it cannot recover. An award of damages must be proved to the point where they can be determined by reasonable inference, not by speculation or guess. A court must be able to connect any damages to the conduct of the defendant. See Van Dyk Research Corp. v. Xerox Corp., 478 F. Supp. 1268, 1327-28 (D.N.J. 1979), cert. denied, 452 U.S. 905, 69 L. Ed. 2d 405, 101 S. Ct. 3029 (1981). See also Southern Pac. Com. Co. v. American Tel. & Tele. Co., 556 F. Supp. 825, 1090 (D.D.C. 1983), cert. denied, 470 U.S. 1005, 84 L. Ed. 2d 380, 105 S. Ct. 1359 (1985) (holding that a "but for" damage model is "fatally deficient" where it provides "no basis for the Court to determine without speculation the amount of damage, if any, caused by any of the particular actions of the defendants").
For the reasons above, the Court finds that plaintiff's damages model is deficient as a matter of law.
Based upon the foregoing, the motions made by defendants -- Standard Roofings, Inc., Arzee Roofing Supply Corp., GAF Corporation, Allied Roofing, Inc., Servistar Corp., Robert Higginson (deceased), William Higginson, Alvin Roth, Cary Roth, Joseph Licciardello, and Wood Fibre Industries, Inc. -- for summary judgment dismissing plaintiff's Complaint are GRANTED. Plaintiff's Complaint is therefore DISMISSED WITH PREJUDICE.
An appropriate Order accompanies this Letter Opinion.
NICHOLAS H. POLITAN
This matter, having come before the Court on motions by defendants -- Standard Roofings, Inc., Arzee Roofing Supply Corp., GAF Corporation, Allied Roofing, Inc., Servistar Corp., Robert Higginson (deceased), William Higginson, Alvin Roth, Cary Roth, Joseph Licciardello, and Wood Fibre Industries, Inc. -- for summary judgment dismissing the Complaint of plaintiffs, Joseph Rossi, Rossi Florence Corp., and Rossi Roofing, Inc.; and oral argument having been heard on the motion on October 23, 1996; and the parties thereafter having provided the Court with additional submissions; and for good cause shown, as more fully set forth in the accompanying Letter Opinion;
IT IS on this 26th day of March, 1997,
ORDERED that plaintiffs' Complaint be and is hereby GRANTED ; and it is further
ORDERED that plaintiff's Complaint be and is hereby DISMISSED WITH PREJUDICE.
NICHOLAS H. POLITAN