Page:Calnetics Corp. v. Volkswagen of America, Inc. (532 F.2d 674).pdf/10

 total air-conditioning demands of Volkswagen dealers in 1970; (6) that in November, 1969, Distributor placed a 1500-unit order to Calnetics, effectively replacing the 10,000-unit purchase order of June; (7) that in early 1970 Distributor notified Calnetics of its intent to cancel the 1500-unit order; (8) that in the beginning of the 1971 model year Subsidiary was “back on the right track”; and (9) that on September 28, 1970, just prior to the 1971 model year, Distributor’s service manager wrote to one of its representatives that “[Distributor] is going 100% to Volkswagen Products Corp. [i. e., Subsidiary] air conditioner units for 1971.”

Despite Calnetics’ arguments to the contrary, the evidence tending to show that Distributor dropped Calnetics as a supplier for purely independent business reasons is substantial and appears strong in comparigon with Calnetics’ inferences of conspiratorial intent. The dissatisfaction of Distributor and retail dealers with the Calnetics products is well documented, as is Calnetics’ rejection of 25% of warranty claims submitted to it, its failure to deliver air conditioners on time, its weak financial condition, and the success of Delta, another manufacturer, in taking business away from Distributor by selling direct to dealers. Further, Calnetics does not dispute the court’s finding that Distributor, as a result of the problems it experienced with Calnetics’ products, “had no desire to purchase additional * * * [Calnetics] air conditioners * * *.” Also tending to show the lack of conspiratorial purpose is the fact that Delta, not Subsidiary, supplied Distributor with the vast majority of the 1970 model-year units which Calnetics claimed it would have supplied but for the conspiracy between VW, Subsidiary, and Distributor.

If this appeal were from a jury verdict in favor of Distributor, our inquiry would be limited to the presence of evidence sufficient to support the verdict. However, the claim against Distributor was never presented to a jury. It was decided by the court on summary judgment. Our inquiry, therefore, is not whether there is substantial evidence supporting a finding of independent business purpose, but whether no reasonable jury could have found that Distributor participated in a conspiracy to restrain trade. The burden is on the party moving for summary judgment to show the absence of any genuine issue of material fact, and, in determining whether the burden has been met, we must draw all inferences of fact against the movant and in favor of the party opposing the motion. Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 505, 89 S.Ct. 1252, 1259, 22 L.Ed.2d 495, 506 (1969); ''DeVoto v. Pacific Fidelity Life Ins. Co., 516 F.2d 1, 5 (9th Cir.), cert. denied'', 423 U.S. 894, 96 S.Ct. 194, 46 L.Ed.2d 126 (1975); Saxony Products, Inc. v. Guerlain, Inc., 513 F.2d 716, 719 n.6 (9th Cir. 1975).

These general standards for the granting of summary judgment become even more strict in the antitrust context. As the Supreme Court observed in Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962):

“* * * We believe that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot * * *. It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of ‘even