The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
This matter comes before the Court on defendant's motion for summary judgment (docket entry # 42-1) and plaintiff's cross-motion for relief from a discovery order and for leave to file an amended complaint (docket entry # 43-9). After considering the parties' respective briefs, supplemental submissions, and oral argument, I informed the parties on the record on July 24, 2007 that I would be entering an order granting defendant's motion for summary judgment and denying plaintiff's cross-motion. This written opinion sets forth the reasons for my ruling.
I. Procedural History and Factual Background
Plaintiff Video Service of America, Inc. (―VSA‖) is a professional media dealer engaged in the business of selling media products, including VHS and computer tapes, to end users who require large quantities of these products, such as television networks and government entities. Defendant Maxell Corporation of America (―Maxell‖) is engaged in the business of manufacturing media products and selling them to professional media dealers, such as VSA.
VSA commenced this litigation by filing a complaint against Maxell on March 9, 2004 in the United States District Court for the District of Nebraska. The complaint alleges that Maxell violated Section 2(a) of the Robinson-Patman Act (―RPA‖), 15 U.S.C. § 13(a), by discriminating in price as between VSA and other professional media dealers who compete with VSA (the ―Allegedly Favored Purchasers‖). VSA claims that Maxell violated the RPA by giving the Allegedly Favored Purchasers lower invoice prices and higher rebates on its products than it gave to VSA, meaning that VSA paid a substantially higher price for the same products. The complaint also included three counts grounded in Nebraska state law, but VSA agreed to voluntarily dismiss these three claims in August, 2004. The case was transferred to this district by a consent order entered on May 17, 2004.
Maxell has filed a motion for summary judgment on VSA's only remaining claim-the RPA claim.*fn1 Maxell argues that it is entitled to judgment as a matter of law for three reasons. First, Maxell argues that after all rebates are factored into the calculation, VSA paid a lower net price for its products than any of the Allegedly Favored Purchasers during the relevant time period. Maxell accuses VSA of focusing solely on specific rebate programs and asserts that when all rebate programs are considered, VSA was paying a lower net price than any of the Allegedly Favored Purchasers. Second, Maxell argues that even if it did discriminate against VSA, the RPA claim must fail because VSA has failed to, and cannot, prove that price discrimination caused an anti-competitive injury in the media products industry, as required by RPA. Maxell contends that case law from the Third Circuit and Supreme Court establishes that a plaintiff must offer expert evidence to prove the anti-competitive element of RPA, and that VSA's failure to retain an expert prior to the close of discovery means that it will be unable to prove damages at trial. Finally, Maxell argues that because VSA was not in competition with any of the Allegedly Favored Purchasers, any price discrimination as between VSA and the Allegedly Favored Purchasers could not have been an RPA violation.
VSA has filed a cross-motion seeking (1) relief from an order filed February 8, 2006 by Magistrate Judge Hedges that limited the disclosure of certain Maxell invoices to ―attorneys' eyes only‖; and (2) leave to amend its complaint to add a claim against Maxell for breach of contract. VSA claims that there is sufficient evidence to show that price discrimination caused anti-competitive injury and to prove its damages, but if the Court disagrees, an amended discovery order would allow it to have an expert review the sales data and issue an expert opinion confirming as much. VSA's proposed amended complaint alleges that it is also entitled to damages for breach of contract because its Maxell dealer agreement included an express promise by Maxell to remain ―at all times in complete compliance with the [RPA],‖ and that Maxell breached this agreement by failing to comply with RPA.
II. Maxell's Motion for Summary Judgment
Federal Rule of Civil Procedure 56(c) authorizes a court to enter summary judgment ―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 a judgment as a matter of law.‖ The burden is on the party seeking summary judgment to prove that there are no genuine disputes of material fact. McCarthy v. Recordex Service, Inc., 80 F.3d 842, 847 (3d Cir. 1996). ―Moreover, any inferences to be drawn must be viewed in the light most favorable to the party opposing summary judgment.‖ Id. The Court's role is ―not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.‖ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
B. The Robinson-Patman Act
VSA's complaint alleges secondary line price discrimination in violation of § 2(a) of the RPA.*fn2 The statute states, in relevant part:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States . . ., and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them. . . .
15 U.S.C. § 13(a) (emphases added). Thus, it is not per se unlawful for a seller to sell a product to different purchasers at different prices. ―Rather, in order to establish a prima facie violation of section 2(a), ‗a reasonable possibility of harm, often referred to as competitive injury, must be shown.'‖ Steelwagon Mfg. Co. v. Tarmac Roofing Sys., 63 F.3d 1267, 1271 (3d Cir. 1995) (quoting J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990)).
To prove a secondary line injury, VSA must prove: (1) the relevant Maxell media product sales were made in interstate commerce; (2) the media products were of ―like grade and quality‖; (3) Maxell ―discriminate[d] in price between‖ VSA and the Allegedly Favored Purchasers; (4) at the time the price differential was imposed VSA was engaged in actual competition with the Allegedly Favored Purchasers; (5) at the time the price differential was imposed VSA and the Allegedly Favored Purchasers competed at the same functional level (―i.e., all wholesalers or retailers, and within the same geographic market,‖ Steelwagon, 63 F.3d at 1271); and (6) ―the effect of such discrimination may be . . . to injure, destroy, or prevent competition‖ to the advantage of the Allegedly Favored Purchasers, 15 U.S.C. § 13(a); Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164, 176--77 (2006); Steelwagon, 63 F.3d at 1271. For purposes of this motion, Maxell concedes that VSA has established elements (1) and (2), but argues that VSA has failed to establish any of the other 4 required elements of a secondary line injury.
The Supreme Court has defined ―price discrimination‖ within the meaning of RPA as ―merely a price difference.‖ Texaco, Inc. v. Hasbrouck, 496 U.S. 543, 559 (1990); Federal Trade Comm'n v. Anheuser-Busch, Inc., 363 U.S. 536, 549 (1960). In determining whether or not there is a price difference, it is necessary to look at the ―net‖ price paid by the purchasers, meaning that the Court must consider all applicable discounts, rebates, offsets, incentives, credits, etc. provided by the seller to the purchasers. Liberty Lincoln-Mercury v. Ford Motor Co., 134 F.3d 557, 571-572 (3d Cir. 1998); A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 F.2d 1396, 1407 (7th Cir. 1989) (stating that ―[w]hether price discrimination has occurred depends, therefore, on the price after all discounts, ...