One Waldron (hereafter petitioner), in 1956, filed an antitrust
action seeking treble damages amounting to $109,000,000 against
seven large oil companies, including respondent (Cities). In
addition to charging a worldwide cartel maintained since 1928 by
oil companies other than Cities, the complaint charged those
companies with conspiring to boycott Iranian oil until Iran agreed
to return Anglo-Iranian's properties which it had nationalized in
1951 alleging: that petitioner had a favorable contract to purchase
Iranian oil over a five-year period; that negotiations had been
conducted with Cities for its participation in the operation of the
Iranian oil industry; that Cities joined the conspiracy, having
been bribed in the latter part of 1952 by Gulf and Anglo-Iranian by
an offer of Kuwait oil at prices lower than petitioner's offer;
that, in 1954, a Consortium Agreement was made whereby all the oil
companies, including Cities, shared almost all the Iranian oil
production, and that the boycott conspiracy frustrated petitioner's
ability to sell oil under his contract. The trial judge granted
defense motions to postpone answering the complaint pending the
taking of petitioner's deposition, and meanwhile petitioner was
stayed from any discovery of his own. The deposition of petitioner
commenced in September, 1956. From then till May, 1962, he and his
associates had their depositions taken (hereafter "were deposed")
for 153 days in all, seven of which were attributable to Cities.
Various stipulations which resulted in prolonging the deposition
period were entered into at petitioner's request or with his
agreement. During the course of his deposition petitioner stated
that he had not initially attributed Cities' failure to buy Iranian
oil from him to its participation in the boycott, but that it was
his discovery of Cities' purchase of Kuwait oil from Gulf plus its
later participation in the Consortium that prompted him to join
Cities as a conspirator. Accordingly, in 1960, Cities moved for
summary judgment under Fed.Rule Civ.Proc. 56, on the ground that
the affidavit of Hill, its officer in charge of Foreign Operations,
and accompanying documents conclusively disproved petitioner's
boycott
Page 391 U. S. 254
conspiracy theory by demonstrating that (1) Cities had
negotiated to buy Kuwait oil from Gulf since 1948 and had
substantially completed a final agreement before petitioner
approached Cities and (2) Cities had only started negotiations to
participate in the Consortium some two years after it was alleged
to have joined the conspiracy and the eventual participation
offered to Cities in the Consortium was so small that Cities,
following its fruitless objections, transferred it to Richfield, in
which Cities held a minority stock interest. The trial judge,
following counterarguments by petitioner, though believing it
"doubtful" that any issue of material fact existed and feeling that
Cities had been joined on mere "suspicion," deferred ruling on
Cities' summary judgment motion, but stated that petitioner's
pretrial discovery would be "closely regulated." Thereafter he
ordered that petitioner be allowed to depose Hill under Fed.Rule
Civ.Proc. 56(f), which provides for comparatively limited discovery
for the purpose of showing facts sufficient to withstand a summary
judgment motion. Petitioner's sole objection was that Cities'
president, Jones, should be deposed, rather than Hill. After
depositions had been taken of petitioner's associates, petitioner
deposed Hill for six days between September 10, 1962, and February
27, 1963, and later moved for additional discovery, whereupon
Cities renewed its summary judgment motion. At oral argument, on
May 27, 1963, the trial judge reiterated his view that petitioner
could point to no facts showing Cities' participation in the
conspiracy and that Hill's deposition and other documentary
evidence further disproved petitioner's theories. On June 28, 1963,
petitioner filed an amended complaint eliminating most of the
specific fact allegations and, in regard to Cities, omitting the
specific allegations about Kuwait oil or membership in the
Consortium, and instead making the general allegation that Cities
joined the conspiracy in a time and manner not known to petitioner,
and that the other oil companies and various coconspirators
"secretly threatened, induced and conspired with . . . Cities . . .
to break off dealings with" petitioner. On June 23, 1964, the trial
judge denied motions for summary judgment by other defendants,
postponed final disposition of Cities' motion, and gave petitioner
opportunity under Rule 56(f) to depose the three surviving members
of Cities' executive staff who had participated in the alleged
Iranian oil dealings and to have certain documents produced. The
depositions were completed and the documents produced in July and
August, 1964. In September, 1964, petitioner moved for the
production of all documents in Cities' or the other defendants'
possession relating to
Page 391 U. S. 255
Iranian oil between June, 1952, and January, 1955, and documents
from and oral examination of Carter, a former Cities employee, who
acted as an intermediary between Cities and petitioner. His
counsel's supporting affidavit related facts designed to show that
Cities' failure to follow through on its original interest in
dealing with petitioner was substantial evidence of Cities'
participation in the boycott allegedly organized by the other
defendants. Cities again renewed its summary judgment motion and,
following arguments on both motions, the trial judge granted
summary judgment on September 8, 1965, holding that petitioner had
failed to meet amended Rule 56(e)'s requirement that a party
opposing a properly supported summary judgment motion show by
affidavit or otherwise "specific facts showing that there is a
genuine issue for trial." The court ruled as to petitioner's
cross-motion for additional discovery under Rule 56(f) that his
total failure to produce evidence tending to show Cities' part in a
conspiracy demonstrated that additional discovery would be a
fishing expedition and constitute harassment. The Court of Appeals
affirmed.
Held:
1. The trial judge's orders prior to the rendition of summary
judgment were proper, and did not place unfair limits on
petitioner's access to relevant information. Pp.
391 U. S.
270-274;
391 U. S.
290-299.
(a) Petitioner himself, from the beginning, took the position
that the two payoffs (the Kuwait contract and participation in the
Consortium) were the only links between Cities and the conspiracy.
By Hill's affidavit and supporting documents, Cities apparently
felt it could disprove these charges. Pp.
391 U. S.
270-271.
(b) The trial judge did not abuse his discretion in ordering
petitioner to limit initial discovery to Hill, rather than Jones,
Cities' president, with whom petitioner had primarily dealt; since
Hill had been the ranking Cities official in charge of the Kuwait
and Consortium transactions, it is unrealistic to suggest that
Jones could have involved Cities in such a large conspiracy without
knowledge on the part of its other major executives, and, in any
case, the issue became moot after Jones' death, which occurred
before petitioner would have been able to depose him had the trial
judge permitted him to do so. Pp.
391 U. S. 272;
391 U. S.
294-295.
(c) After Hill's deposition and the accompanying documents in
its support, petitioner no longer seriously contended that the
evidence relating to Kuwait and Consortium was sufficient by itself
to raise a genuine issue of material fact. P.
391 U. S.
272.
(d) The order permitting petitioner to depose the surviving
Cities officials with whom he had dealt was not unduly
restrictive,
Page 391 U. S. 256
and petitioner was not prejudiced by not being allowed to depose
other executives at the time he was allowed to depose Hill because
it was not until he had deposed Hill that he began to suggest other
possible motivations for Cities to conspire. Pp.
391 U. S.
272-274.
(e) As petitioner himself acknowledges, Cities was in a totally
different position from the other defendants. The discovery given
the other defendants did not unduly favor Cities, whose own
deposition testimony of petitioner totaled only 3 1/2 days, since
petitioner benefited as much
vis a vis Cities from the
depositions taken by the other defendants as Cities did. Though the
case has been pending in the lower courts 11 years, during which
time petitioner has not received a formal answer from any defendant
nor been permitted general discovery, Cities has been the only
party consistently desirous of expediting the proceedings, and
petitioner has always acquiesced in the delays. Pp.
391 U. S.
290-292.
(f) Even assuming the disputed claim that petitioner was kept
from obtaining general discovery of the other defendants during the
period he sought to build a case against Cities, petitioner had
discovery against the one party he is now opposing, and that party
was a "tangential defendant," whose link to the other defendants
was shown to be factually incorrect. Under those circumstances, it
was petitioner's burden, which he did not meet, of showing a
significant likelihood that discovery of the other defendants would
be fruitful. Pp.
391 U. S.
292-294.
(g) Petitioner has not shown any prejudice by not having been
allowed to depose Carter, a former employee of Cities originally
listed as one of petitioner's associates, concerning Jones' alleged
interference with Carter's efforts as an intermediary between
Cities and petitioner to sell the United States Government Iranian
gasoline for military use, and even if Carter would not voluntarily
have furnished petitioner information, petitioner has not explained
why he did not try to secure Carter's testimony in 1961 (when the
trial judge described petitioner's case as "extremely weak") or
1963, rather than waiting till 1964. Pp.
391 U. S.
295-297.
(h) The time period to which petitioner's documentary requests
pertain is one largely relating to activities outside the period
covered by this phase of the lawsuit, and, in view of petitioner's
failure (despite substantial discovery) to obtain significant
evidence of conspiracy for the period during which it was alleged
to have directly injured him, the trial court was warranted in
denying the additional documentary discovery petitioner requested.
Pp.
391 U. S.
297-298.
Page 391 U. S. 257
2. On the facts shown, summary judgment was correctly awarded to
respondent, since petitioner was unable to show sufficient material
facts to raise genuine issues for trial of his case against Cities.
Pp.
391 U. S.
274-288.
(a) After Iran had nationalized Anglo-Iranian's properties,
Anglo-Iranian, contending that the nationalization violated
international law, announced that it would protect its rights in
any country and would sue any purchaser of Iranian oil.
Petitioner's evidence showed that the other defendants and other
American oil companies, fearful that, if Iranian nationalization of
Anglo-Iranian's property succeeded, other countries would follow
suit, refused to deal with any company handling Iranian oil. P.
391 U. S.
278.
(b) When that compelling explanation for Cities' failure to
purchase Iranian oil is coupled with Cities' showing that the
Kuwait deal antedated nationalization, that Cities opposed the
Consortium, and ultimately refused its minimal share therein,
petitioner's suggestion that Cities was "bought off" becomes
insupportable. Pp.
391 U. S.
278-279.
(c) Petitioner's consistent argument that Cities' interests in
this situation were opposed to those of the other defendants
prompts him to insist that Cities' motive for conspiring is not
controlling, but for petitioner to say that Cities' failure to deal
with him showed Cities' participation in the conspiracy is to rely
on motive. P.
391 U. S.
279.
(d) A report prepared for transmission to Iranian premier
Mossadegh in October, 1952, after Jones returned from Iran and
Watson, Cities' senior vice-president, announced to petitioner that
Cities was no longer interested in Iranian oil, is used by
petitioner in two opposing ways, and does not further petitioner's
theory of conspiracy. Pp.
391 U. S.
281-282.
(e) A letter sent by Jones to the incoming Secretary of State
and Attorney General in January, 1953, that the only solution was
for Iran to reach an accommodation with the British, and a
supporting legal memorandum that Iran, under international law, had
the right to nationalize Anglo-Iranian's properties, likewise had
no probative value for petitioner's case. Pp.
391 U. S.
282-283.
(f) Petitioner's failure to sell oil to Richfield, of which
Cities was a major, though not a controlling, stockholder, adds
nothing to the case against Cities. Pp.
391 U. S.
283-284.
(g) Jones' disassociating himself from Carter's efforts on
petitioner's behalf to sell Iranian produced aviation gasoline to
the
Page 391 U. S. 258
United States Air Force occurred at a time when petitioner
conceded that Cities was not yet a member of the conspiracy, and,
in any case, seems to have constituted no more tan a desire by
Jones not to be used in someone else's financial dealings. P.
391 U. S.
284.
(h) In view of the business relationship between petitioner,
Cities, and the other defendants, it is much more plausible to
believe that Cities' interests coincided, rather than conflicted,
with those of petitioner.
Poller v. Columbia Broadcasting
System, 368 U. S. 464
(1962), distinguished. Pp.
391 U. S. 284-286.
(i) Petitioner's position that Cities' failure to deal with him
(the one fact that petitioner has produced) is sufficiently
probative of conspiracy to withstand summary judgment cannot be
supported where no interest of Cities was shown to parallel the
interests of the other defendants.
Interstate Circuit, Inc. v.
United States, 306 U. S. 208
(1939), and
Theatre Enterprises, Inc. v. Paramount Distributing
Corp., 346 U. S. 537
(1954), distinguished. Pp.
391 U. S. 286-288.
3. The lower courts correctly held that amended Fed.Rule
Civ.Proc. 56(e) placed upon petitioner the burden of producing
evidence of conspiracy after Cities conclusively showed that the
facts upon which petitioner relied to support his conspiracy
allegation were not susceptible of the interpretation he sought to
give them. Pp.
391 U. S.
288-290.
361 F.2d 671, affirmed.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
At issue in this case is the propriety of an award of summary
judgment in favor of respondent Cities Service in a treble damage
antitrust action. The District Court held there was no genuine
issue as to material facts between the parties, and that respondent
was entitled to
Page 391 U. S. 259
judgment as a matter of law. 38 F.R.D. 170 (D.C.S.D.N.Y.1965).
The Court of Appeals for the Second Circuit affirmed. 361 F.2d 671
(1966). This Court granted certiorari, 385 U.S. 1024 (1967), to
determine whether the decisions below were in conformity with
Poller v. Columbia Broadcasting System, Inc., 368 U.
S. 464 (1962). We conclude that
Poller and
other decisions of this Court were correctly applied and,
accordingly, we affirm.
Because the question whether summary judgment is appropriate in
any case is one to be decided upon the particular facts of that
case, we shall set forth the background of this litigation in some
detail (Part I) before turning to the specific issues petitioner
raises (Parts II-V).
I
On June 11, 1956, petitioner Waldron [
Footnote 1] filed a private antitrust complaint in the
Southern District of New York against seven large oil companies:
British Petroleum Co., Ltd. (formerly Anglo-Iranian Oil Co.), Gulf
Oil Corp., [
Footnote 2] Socony
Mobil Oil Co., Standard Oil Co. of California, Standard Oil Co. of
New Jersey, The Texas Co., and Cities Service Co. The complaint
contained essentially two series of allegations. The first was
copied from the complaint in a then-pending civil action by the
United States against those defendants other than Cities Service,
alleging the formation and maintenance by them of a worldwide oil
cartel since 1928. The second series of allegations dealt
specifically with a conspiracy claimed to have been entered into at
the time
Page 391 U. S. 260
of the nationalization of the properties of the Anglo-Iranian
Oil Co by the Government of Iran in May, 1951. The defendants other
than Cities Service, it was asserted, agreed at that time to
boycott Iranian oil in all world markets until Iran should agree to
return Anglo-Iranian's property and concession rights. While the
dispute between Anglo-Iranian and the Iranian Government under
Premier Mossadegh was still continuing, Waldron and some of his
associates allegedly succeeded in obtaining a contract to purchase
15,000,000 metric tons of crude oil or refined products from the
National Iranian Oil Co. (NIOC), the company formed to take over
Anglo-Iranian's nationalized properties, over a five-year period at
a rate substantially less than the then current posted price for
Persian Gulf oil. NIOC, in return, agreed not to deal with anybody
other than Waldron in the United States market.
The complaint next stated that the defendants other than Cities
Service conspired to prevent petitioner from selling any of the oil
to which he was entitled under his contract with NIOC. It was
further alleged that Cities Service, after first engaging in
extensive negotiations with Waldron with an eye toward
participating in the operation of the Iranian oil industry, broke
off dealing and joined the conspiracy to boycott him as a result of
having received what amounted to a bribe from Gulf and
Anglo-Iranian, namely, a large supply of oil from Kuwait at a price
even lower than that petitioner could offer Cities pursuant to his
contract with NIOC. Finally, the defendants were alleged to have
entered into a Consortium Agreement in 1954, pursuant to their
attempt to monopolize Middle East oil production, which parceled
out substantially all the Iranian oil production between them.
Cities Service was claimed to have been permitted to purchase a
share in the Consortium. Petitioner asserted that the boycott
conspiracy
Page 391 U. S. 261
carried out by all the defendants completely frustrated his
ability to sell oil under his contract, and accordingly sought
treble damages from them in the amount of $109,000,000.
Within the time set for the defendants to answer the complaint,
various of them moved to take petitioner's deposition, and all of
them moved to postpone the filing of their answers until the
completion of that deposition. The motions were accompanied by
affidavits of counsel that the legal questions presented by the
complaint were extraordinarily complex, and that they had
insufficient information about petitioner's business dealings with
the Iranian Government to permit them adequately to prepare their
clients' answers within the 20-day time limit set by Rule 12(a) of
the Federal Rules of Civil Procedure. These motions were granted by
Judge Weinfeld, who, in addition, stayed petitioner from any
discovery of his own until completion of the defendants' discovery,
apparently pursuant to then-existing practice in the Southern
District. [
Footnote 3]
The deposition of Waldron commenced on September 10, 1956, and
continued until July 3, 1957, at which time petitioner's counsel
announced his intention to limit further examination. Nothing
further was done by any party until December 30, 1957, at which
time a motion was made to terminate the taking of Waldron's
deposition. By this time, 62 days' testimony had been taken over a
period of more than 15 months. All adjournments up to this point
were either at Waldron's request or with his consent. Meanwhile,
various of the defendants had noticed the depositions of
petitioner's associates, Richard S. Nelson, James A. Bentley, James
E. Zoes, Ray Carter, and Addison Brown, in October and November,
1956. Pursuant to successive stipulations entered
Page 391 U. S. 262
into between petitioner and the defendants, the taking of these
depositions had been postponed up to the date of petitioner's
motion to terminate the taking of his own deposition. In that
motion, petitioner also moved to vacate the notices to take
depositions of his associates.
In response to petitioner's claims that the protracted
examination of him by the defendants constituted harassment and an
undue burden on him, the defendants pointed out that only one of
their number had as yet examined Waldron, and that the length of
time over which the examination had proceeded had been with his
complete acquiescence. As for petitioner's financial hardship
contention, the defendants suggested that, in view of the damages
sought by petitioner, it was not inappropriate that he be required
to spend considerable time clarifying his claims before trial.
Judge Herlands denied the motion on February 11, 1958, after
argument; he ordered, however, that further examination of the
petitioner by the seven defendants be limited to 52 working days,
of which 10 were allotted to respondent Cities Service. In addition
174 1/2 days were scheduled for the examination of Waldron's five
associates, of which 31 went to Cities Service. The examinations
were to be consecutive, and were set to commence on March 10, 1958,
unless the parties agreed otherwise. The defendants were authorized
to postpone the filing of their answers until 30 days after the
completion of the depositions, and petitioner was stayed from
undertaking any discovery proceedings of his own during that
period.
Pursuant to stipulation, the continued examination of petitioner
did not resume until September 15, 1958, and was not terminated
until October, 1959. Twenty-six days were spent deposing Waldron in
the latter part of 1958 and only six days during all of 1959, of
which 3 1/2 were utilized by counsel for Cities Service.
Petitioner's
Page 391 U. S. 263
associates were deposed between January, 1960, and April, 1962,
for 58 working days, of which 3 1/2 were used by counsel for Cities
Service. Waldron was then examined for one additional day in
1962.
Thus, between September, 1956, and May, 1962, a period of over 5
1/2 years, Waldron and his associates were deposed for a total of
153 days, of which only seven days were attributable to Cities
Service. The various stipulations that resulted in prolonging the
period required for the taking of these depositions were all
entered into either at the request, or with the agreement, of
petitioner.
During the course of his deposition by Cities Service, Waldron
stated that he had at first not attributed Cities' failure to
conclude some sort of a deal with him for Iranian oil to its
participation in the boycott. He explained that it was his
discovery of Cities' purchase of substantial amounts of Kuwait oil
from Gulf, plus its subsequent participation in the 1954
Consortium, that prompted him to join it in his complaint as a
member of the conspiracy. Accordingly, when Cities moved for
summary judgment in its favor in 1960, it did so on the ground that
the affidavit of Cities' Senior Vice President in Charge of Foreign
Operations, George H. Hill, and the accompanying documents from
Cities' files that were submitted in support of the motion
conclusively disproved petitioner's theory that it had joined the
alleged boycott conspiracy because it had been bought off by the
other conspirators.
In brief, the documents demonstrated that Cities had been
engaged in negotiations with Gulf [
Footnote 4] to purchase Kuwait crude oil since 1948, and
that a substantially final agreement, although not the actual
conclusion of a contract,
Page 391 U. S. 264
had been reached on the proposed deal prior to the time
petitioner first approached Cities. [
Footnote 5] As for the Consortium, the documents showed
that Cities had only commenced negotiations with the defendants to
obtain participation therein some two years after it was alleged to
have joined the conspiracy, and that the share it was eventually
offered, over its strenuous objections, was so small that it
transferred the share to the Richfield Oil Co., in which it held a
minority stock interest.
In reply to Cities' motion, petitioner's counsel reiterated his
contention that the course of dealings between Waldron and his
associates, on the one hand, and various of Cities' executive
personnel, especially its president, W. Alton Jones, on the other,
raised an inference of conspiracy because the most probable
conclusion to be drawn from Cities' decision to pass up the
assertedly extremely beneficial deal proposed by petitioner,
notwithstanding its need for additional supplies of imported oil,
was that, in some manner, Cities either had been "reached" or had
used its negotiations with Waldron as a means of forcing its way
into the alleged Middle East oil cartel. Petitioner also suggested
that Cities might well have made some sort of informal agreement
with the other defendants concerning the Consortium that was not
revealed by the documents, and that Cities might have expected, at
the time such an agreement was made, a more profitable share
therein than it was eventually offered.
In response to these arguments, Judge Herlands, who had by this
time been assigned to the case for all
Page 391 U. S. 265
purposes, handed down a memorandum decision on March 30, 1961,
postponing determination of Cities' motion for summary judgment. In
his opinion, Judge Herlands stated that it was "doubtful" whether
any issue as to any material fact existed, and that Cities had been
named a defendant on mere "suspicion." Because he judged
petitioner's claim against Cities "so insubstantial," he ruled that
petitioner would not be given "
carte blanche authority to
conduct untrammeled pretrial proceedings," but that such
proceedings would be "closely regulated." Subsequently, Judge
Herlands entered an order providing that petitioner was to be
allowed to take the deposition of Hill, the Cities' executive who
had been in charge of negotiating the Kuwait deal with Gulf and who
had also carried out Cities' attempts to secure a participation in
the Consortium.
At the hearing in 1961 on the proposed order to implement the
court's decision, counsel for Waldron asked to depose Cities'
president Jones first. Contrary to what appears to be the position
taken now, petitioner acknowledged and accepted Judge Herlands'
order that his discovery of Cities was to be carried out pursuant
to Rule 56(f), Fed.Rules Civ.Proc., which provides for
comparatively limited discovery for the purpose of showing facts
sufficient to withstand a summary judgment motion, rather than Rule
26, which provides for broad pretrial discovery. Petitioner's sole
objection to the proposed order was that Jones should be deposed,
rather than Hill.
In response to Judge Herlands' observation that Hill was the man
who was in the best position to provide information about the two
alleged facts relied on in the complaint to link Cities to the
conspiracy, petitioner's counsel for the first time argued that the
Kuwait deal and the Consortium agreement were not crucial to the
case. While maintaining the position that those two items were
significant, counsel stated that Cities' motive
Page 391 U. S. 266
for entering the alleged conspiracy was basically irrelevant. He
argued that the evidence showed that Cities had embarked on a
course of dealing with Waldron and then inexplicably had broken it
off, and that this sequence of events was, in itself, sufficient
evidence of conspiracy to withstand summary judgment and to entitle
petitioner to sufficient discovery to ascertain the reason for the
breakoff.
This argument was rejected, and the trial judge clearly stated
that, to withstand summary judgment, petitioner would have to
produce some factual evidence of conspiracy beyond Cities' mere
failure to carry through on a deal for Iranian oil. The taking of
Hill's deposition was scheduled, without objection by petitioner,
to commence upon the completion of the depositions of petitioner's
associates.
More than a year then elapsed, during which time, again pursuant
to stipulations between all the parties, only 25 days were spent
taking the depositions of petitioner's associates. Immediately
after the completion of these depositions, in response to motions
to strike portions of the complaint made by various defendants
other than Cities, petitioner announced his intention to amend his
complaint and entered into a stipulation with the other parties
extending their time to move or answer until 30 days after service
on them of the amended complaint. This stipulation was entered into
on June 1, 1962, approximately 30 days prior to the time by which,
under Judge Herlands' previous order, the defendants would have
been required to answer the complaint or move for summary judgment.
Some five weeks later, at the request of petitioner's counsel, a
new stipulation was entered into postponing the taking of Hill's
deposition until September 10, 1962, and staying petitioner's
undertaking to file an amended complaint pending completion of the
Hill deposition.
Page 391 U. S. 267
Between September 10, 1962, and February 27, 1963, pursuant to
stipulations between the parties, petitioner deposed Mr. Hill for a
total of six working days. Then, at the beginning of May,
petitioner moved for additional discovery. In response to this
motion, respondent Cities Service renewed its summary judgment
motion in addition to opposing further discovery by petitioner. At
oral argument, on May 27, 1963, Judge Herlands reiterated his
opinion that, thus far, Waldron was still unable to point to any
facts tending to show that Cities had participated in the alleged
conspiracy. Indeed, the deposition testimony of Hill, plus various
additional documentary evidence supplied in connection therewith,
had further disproved the Kuwait and Consortium payoff theories.
This evidence showed that Cities had actively resisted formation of
the Consortium by the other defendants, even to the extent of
making approaches to the United States Government in the hope of
securing its intervention in the situation.
While the respective motions were pending before Judge Herlands,
petitioner, on June 28, 1963, filed an amended complaint. It
differed from the original complaint in that most of the specific
facts alleged in the original were replaced by more general
allegations of conspiracy and boycott. In regard to Cities, the
complaint was amended to omit all reference to any factual
allegations involving either Kuwait oil or membership in the 1954
Consortium. In addition, those allegations of the original
complaint which were directed at the other defendants and which had
specifically excluded Cities were made more general, and the
language excluding Cities was replaced by language referring simply
to unspecified coconspirators. In place of the previous specific
allegations directed at Cities, the amended complaint substituted
two new formulations: first, a general allegation that Cities
joined the conspiracy at a
Page 391 U. S. 268
time and in a manner not known to the plaintiff; and, second,
that the other defendants and various of their coconspirators
"secretly threatened, induced and conspired with defendant Cities
Service to break off all dealings with plaintiff."
Judge Herlands held petitioner's and Cities' cross-motions under
advisement for a little more than a year while he considered
motions for summary judgment against petitioner made by the other
defendants. Then, on June 23, 1964, in a long and comprehensive
opinion dealing with both sets of motions, he denied the motions
for summary judgment made by the other defendants, again postponed
final disposition of Cities' motion, and granted Waldron the
opportunity to conduct further discovery of Cities under Rule
56(f). [
Footnote 6] Presumably,
decision on petitioner's motion was deferred so long because, had
the motions of the defendants other than Cities for summary
judgment been granted, petitioner's case against Cities would have
also been terminated. In any event, the order implementing the
decision permitted petitioner to depose all those members of
Cities' executive staff then alive [
Footnote 7] who he alleged had participated at all in the
dealings concerning Iranian oil, namely, Burl S. Watson, Cities'
chairman of the board, Alfred P. Frame, Cities' first
vice-president, and J. Edgar Heston, Cities' manager of oil
production. The order also directed Cities to produce all documents
and memoranda relating to (a) the Kuwait and Consortium issues, (b)
conversations and communications between it and any other defendant
between June 11, 1952, and October 1, 1952, concerning petitioner,
his associates,
Page 391 U. S. 269
and Cities' dealings in connection with Iranian oil, (c)
conversations and communications between Cities and any other
defendant between June 11, 1953, and September 30, 1953, pertaining
to negotiations between Waldron and the Richfield Oil Corp.
concerning the purchase by Richfield of Iranian oil, and (d)
conversations and communications between any deponent for Cities
and any other Cities' employee involving the subject matter
described in the preceding categories. The depositions of the three
Cities' executives were completed during the months of July and
August, 1964, and, in connection therewith, more than 140 documents
were produced.
In September, 1964, petitioner moved for the following
additional discovery: first, the production of all documents in the
possession of Cities dealing with Cities' activities in connection
with Iranian oil between June, 1952, and January, 1955; second, the
production of all documents relating to the same subject matter in
the possession of the other defendants, and third, the production
of all relevant documents from, and oral examination of, Ray
Carter, a former Cities employee who had acted as an intermediary
between Cities and petitioner in their dealings. Petitioner further
indicated a desire to depose various unspecified officials of the
other defendants after the completion of the discovery detailed in
his motion. Immediately thereafter, in October, 1964, Cities, for
the third time, renewed its motion for summary judgment, [
Footnote 8] and argument was had on
both
Page 391 U. S. 270
motions in February, 1965. Judge Herlands granted Cities' motion
on September 8, 1965, holding that petitioner had failed to fulfill
the requirement of amended Rule 56(e) that a party opposing a
properly supported summary judgment motion must produce by
affidavit or otherwise "specific facts showing that there is a
genuine issue for trial." [
Footnote
9] As to petitioner's cross-motion for additional discovery
under Rule 56(f), the court ruled that petitioner's total failure
by that date to produce any evidence tending to show Cities'
participation in a conspiracy to boycott him, despite considerable
discovery, demonstrated that additional discovery would be merely a
fishing expedition, and would unduly harass respondent. The Court
of Appeals for the Second Circuit affirmed the judgment of the
District Court in all particulars. [
Footnote 10]
Petitioner states that three questions are presented by this
case: first, whether he was improperly limited in the discovery
permitted him prior to the rendering of summary judgment (Parts II,
391 U. S.
infra); second, whether sufficient material facts to raise
genuine issues for trial were shown (
391 U.
S. infra), and third, whether the lower courts
held, erroneously, that amended Rule 56(e), Fed.Rules Civ.Proc.,
places the burden of showing that there is a genuine issue of
material fact for trial on the party opposing a motion for summary
judgment (
391 U. S.
infra).
II
We turn first to one aspect of petitioner's contention that his
discovery was unduly restricted: whether certain orders of the
trial judge imposed unfair limits on his access to relevant
information. The second aspect of petitioner's discovery argument,
addressed to what he viewed as the necessity for additional
discovery to enable
Page 391 U. S. 271
him adequately to oppose the summary judgment motion, we shall
discuss in
391 U. S.
Petitioner's initial complaint, as set out more fully
supra at
391 U. S.
259-261, specifically alleged that Cities had adhered to
the conspiracy by refusing to deal with petitioner after being
bought off by the Kuwait contract and an opportunity to participate
in the Consortium. Similarly, in his deposition, Waldron reiterated
his belief that the only links between Cities and the conspiracy
were those two payoffs. Thus, by petitioner's own doing, respondent
Cities Service was from the beginning of the litigation placed in a
vastly different position from the other alleged coconspirators.
Cities, realizing this, apparently felt that, if it could show that
it had, in fact, not received any payoff or bribe from the other
defendants, petitioner would abandon his contention that it had
joined the alleged conspiracy. Accordingly, immediately after it
had taken Waldron's deposition, Cities made its motion for summary
judgment accompanied by Hill's affidavit and the supporting
documents described
supra at
391 U. S.
263-264. When Judge Herlands declined to grant Cities'
motion at that time, he permitted petitioner to examine Cities
about those specific facts that had theretofore been the only ones
alleged as evidence of conspiracy on the part of Cities other than
its failure to make a deal with petitioner for Iranian oil.
Petitioner appears to argue that it was erroneous for the trial
court to limit his discovery initially to Hill, rather than Jones,
the person with whom he primarily dealt. However, since petitioner
was the party who had injected Kuwait and Consortium into the case,
and since Hill had been the ranking Cities official in charge of
both transactions, it is difficult to conclude that the trial judge
abused his discretion in ordering petitioner to begin by examining
Hill.
Page 391 U. S. 272
Even assuming
arguendo that it was error for petitioner
to have been required to begin his discovery with Hill, rather than
Jones, the issue is moot for purposes of appellate review because
Jones' accidental death occurred prior to the time petitioner would
have been able to commence deposing him had he been permitted by
Judge Herlands to do so. There is no reason to believe that
petitioner would have made any greater efforts to see that the
examination of his associates, Bentley, Zoes, and Brown, was
carried out in less than the 13 months that were actually taken had
he been scheduled to depose Jones at the end of that time, rather
than Hill. Obviously it was Jones' death, rather than any action
taken by Judge Herlands, that prevented his being deposed at some
later date.
Although petitioner had begun to deemphasize the significance of
Kuwait and the Consortium to his claim of conspiracy by Cities at
the first argument on Cities' motion for summary judgment, it was
not until after the additional information described above was
obtained through Hill's deposition, and the supporting documents
accompanying it, that petitioner began to stress the contention
that Cities had undergone a dramatic shift in its attitude towards
him in September, 1952, immediately after Jones had returned from a
trip to Iran arranged for him by Waldron. While it is probably to
overstate the case to say, as does respondent, that petitioner
abandoned his Kuwait and Consortium claims at this time, it is fair
to say that petitioner no longer seriously contended that the
evidence relating to them was sufficient, in itself, to raise a
genuine issue of material fact.
After again declining to grant Cities' motion for summary
judgment, Judge Herlands entered an order permitting further
discovery of Cities. It provided, as described in more detail,
supra at
391 U. S.
268-269, for an examination of those Cities executives
still alive who participated in
Page 391 U. S. 273
the negotiations between petitioner, Cities, and the Government
of Iran. It also directed the production of all documents in
Cities' possession relating to any contemplated dealings in Iranian
oil during the period of Waldron's active contact with Cities,
i.e., between June 11, 1952, and October 1, 1952.
[
Footnote 11]
This order had the effect of permitting Waldron to examine every
surviving Cities official with whom he had dealt to any substantial
degree in his attempts to arrange a sale of Iranian oil. He was
permitted to examine them, and have production of all documents in
connection therewith, concerning all the events that he had
specified in his original complaint or in the two previous oral
arguments on Cities' motion for summary judgment as being evidence
of Cities' participation in the alleged conspiracy. Certainly the
scope of this order, viewed as of the time it was made, does not
seem open to any serious challenge as unduly restrictive, and
petitioner did not make any such argument at the time the order was
proposed. It was only when petitioner moved for additional
discovery in the fall of 1964 that he began seriously to complain
about the allegedly limited scope of the prior discovery order.
Accordingly, we shall postpone more detailed discussion of this
point to
391 U. S.
infra.
Petitioner did argue then, and still contends now, that he was
prejudiced by the failure of Judge Herlands to let him examine
various other Cities executives, in addition to Jones, at the time
he was permitted to depose Hill. He bases this contention on the
ground that many of these executives were men of advanced years at
that time, and that the deaths that, in fact, ensued [
Footnote 12] could
Page 391 U. S. 274
thus have been reasonably foreseen. The fallacy in this argument
is that it was only after Hill testified that petitioner changed
the focus of his argument before the trial judge to minimize the
significance of Kuwait and Consortium and to suggest other possible
motivations for Cities to conspire. Certainly Judge Herlands was
not required to anticipate that petitioner would change the entire
factual emphasis of his case so that individuals who did not at the
time appear to be particularly vital to the litigation would
subsequently become so. Moreover, petitioner did not even ask to
depose any Cities official who subsequently died, other than Jones,
at the time he was permitted to examine Hill. Therefore,
petitioner's claim of prejudicial error here must fail also.
III
In his affidavit in support of Waldron's motion for additional
discovery, petitioner's attorney detailed the facts produced to
date that assertedly showed Cities' participation in the
conspiracy, in order both to support his contention that additional
discovery was needed and to demonstrate that summary judgment in
favor of Cities should not be granted. We shall first discuss the
propriety of Judge Herlands' award of summary judgment before
dealing further (in
391 U. S.
A
When petitioner moved for additional discovery in 1964, in
opposition to Cities' still pending motion for summary judgment,
his counsel's affidavit pointed to the following evidence as
tending to show a participation by Cities in the alleged conspiracy
[
Footnote 13] to boycott
his
Page 391 U. S. 275
attempts to resell the Iranian oil to which he allegedly had
access under his contract. Cities had a need to import substantial
amounts of crude oil for its domestic operations in the United
States, this need amounting to some 100,000 barrels per day. Cities
had theretofore been unable to obtain an independent oil supply in
the Middle East despite its long-existing desire to do so. Through
petitioner, Cities had two assertedly attractive possibilities of
fulfilling its crude oil needs. The first consisted of short-term
purchases of Iranian oil at prices substantially below the going
rates for Mideast oil via petitioner's contract with NIOC. The
second, in which Cities was apparently more interested and on which
tentative agreement with petitioner was allegedly reached, was for
Cities to enter into a long-term arrangement to take over the
operation of the entire Iranian oil industry (or a substantial
portion thereof) in place of Anglo-Iranian, and to compensate
Waldron for what would amount to a transfer of his contract
rights.
The evidence further showed that Cities went to substantial
lengths to explore the possibilities presented by petitioner.
Waldron, at Jones' request, secured an invitation for Jones,
together with other Cities executives, from Premier Mossadegh to go
to Iran to look over the production facilities that NIOC had
appropriated from Anglo-Iranian. Upon examination of the
facilities, the Cities executives concluded that, notwithstanding
the departure of the British personnel who had previously been in
charge of operations, the Iranians had managed to keep them in
relatively good operating condition. This conclusion was orally
presented to Mossadegh by Jones and a comprehensive written report
on specific details was promised to be transmitted later.
During
Page 391 U. S. 276
his stay in Iran, Jones also made a side trip to Kuwait to visit
the Kuwait Oil Company, owned jointly by Anglo-Iranian and Gulf. On
the return of the Cities party to the United States, Watson
[
Footnote 14] informed
petitioner in October, 1952 that Cities did not propose to take any
steps relative to obtaining Iranian oil. although another Cities
executive subsequently indicated to him that Cities had not
entirely abandoned its interest in his proposals. However, Cities
had no further significant dealings with Waldron thereafter.
Meanwhile on September 21, 1952, Carter, acting on petitioner's
behalf, had sent a telegram to Secretary of the Interior Chapman
offering to sell a cargo of Iranian-produced aviation gasoline to
the United States Air Force. Carter stated that Jones had said that
he would use his good offices to get the United States to purchase
the gasoline. Instead, Jones cabled Watson instructions to tell
Chapman that he was disassociating himself from Carter's efforts
and that he questioned the wisdom of Carter's proposal. This Watson
did.
Subsequently, in January, 1953, Jones wrote to the incoming
Secretary of State and Attorney General informing them of his
belief that the only solution to the Iranian oil problem would be
some sort of agreement between Iran and Anglo-Iranian. He
accompanied this missive with a legal memorandum which stated that,
under international law, Iran appeared to have the right to
nationalize the Anglo-Iranian oil properties, but he asserted that
the memorandum had not been prepared as a step toward Cities'
involving itself in the Iranian situation. Three weeks later, the
final contract with Gulf for a 15-year supply of 21,000 barrels per
day of Kuwait oil, plus an option for an additional 30,000 barrels
per day, was signed by Cities and Gulf.
Page 391 U. S. 277
Meanwhile, Waldron continued his unsuccessful efforts to sell
Iranian oil to various American companies. In particular, in June,
1953, he entered into extensive negotiations with the Richfield Oil
Company, in which Cities had about a one-third interest. Although
great interest was shown initially by Richfield, petitioner was
told in September that it had decided not to purchase Iranian oil
after all. Then, in 1954, the Consortium was set up to take back
Anglo-Iranian's properties and concession from NIOC, and Richfield
obtained a share of about 1 1/2% therein. [
Footnote 15]
Petitioner argues that the inference that Cities was a
participant in the alleged conspiracy to boycott him follows from
the foregoing facts. Even viewed without reference to other facts
of record, it is apparent that petitioner's main argument is that
Cities' failure to follow through on its original substantial
interest in dealing with him is substantial evidence of
participation in the boycott allegedly organized by the other
defendants. And undoubtedly, given no contrary evidence, a jury
question might well be presented as to Cities' motives in not
dealing with Waldron,
cf. Poller v. Columbia Broadcasting
System, Inc., 368 U. S. 464
(1962), notwithstanding that such a failure to deal conceivably
might also have resulted from a whole variety of nonconspiratorial
motives involving the exercise of business judgment as to the
attractiveness of the opportunity offered by petitioner. However,
as we next show. the record in this case contains an overwhelming
amount of such contrary evidence of Cities' motives, much of it
supplied by petitioner himself.
Page 391 U. S. 278
B
Immediately after the nationalization, Anglo-Iranian publicly
announced both in the news media and throughout the oil industry
its view that the nationalization of its properties and the
abrogation of its concession rights amounted to an illegal act
under international law, and stated its intention to "take all such
action as may be necessary to protect its rights in any country,"
including the bringing of lawsuits against any purchaser of Iranian
oil. In addition, the evidence introduced by petitioner tended to
show that the other major oil company defendants in this suit, as a
result of their fear that countries in which they held concessions
would follow the Iranian lead should the nationalization of
Anglo-Iranian's property be successful, also communicated to Cities
and other domestic oil companies their intention to support
Anglo-Iranian by refusing to deal with any company that handled
Iranian oil. That such threats were both substantial and effective
is demonstrated by the testimony of petitioner that numerous
American oil companies, not made parties defendant in this action,
refused to deal with him for precisely the reason that they were
afraid of retaliation. In addition, petitioner testified that the
other defendants had threatened to boycott any companies that
leased tankers for use in transporting Iranian oil.
It is thus clear that the evidence furnished by petitioner
himself provides a much more compelling explanation for Cities'
failure to purchase Iranian oil than does his argument that such
failure is evidence of conspiratorial behavior by Cities. When this
explanation is placed in juxtaposition with the evidence introduced
by Cities showing that the Kuwait deal was arranged long before the
nationalization, that Cities objected continually to the formation
of the Consortium, and that Cities refused the minimal share
offered it as a prospective participant
Page 391 U. S. 279
therein after the failure of its efforts to block the formation
of the Consortium, the suggestion that Cities was in some manner
bought off becomes insupportable. Petitioner attempts to escape the
force of this showing by arguing that he is obligated not to
demonstrate why Cities conspired, but only to show that Cities in
fact conspired. However, this contention, though undoubtedly true
in the abstract, has little relevance to Waldron's theory of how he
has introduced evidence that Cities in fact conspired.
Petitioner himself consistently argues that Cities' interests in
this entire situation were directly opposed to those of the other
defendants. The others had large supplies of foreign oil; Cities
did not. The others allegedly were members of an international
cartel to control foreign oil; Cities was not. The others were
interested in reestablishing the
status quo prior to
nationalization; Cities was not. It is doubtless due to the
difficulty of suggesting a motive for Cities to conspire against
him, coupled with Cities' demonstrated interest in his proposals
for several months (to the extent that Cities even paid Waldron
several thousand dollars to reimburse him for his time and expenses
incurred in arranging Jones' trip to Iran), that prompts
petitioner, understandably enough, to insist that motive is not
controlling in his case. However, to suggest, as petitioner does,
that Cities' participation in the conspiracy is shown by its
failure to deal with him is itself to rely on motive.
Obviously it would not have been evidence of conspiracy if
Cities refused to deal with Waldron because the price at which he
proposed to sell oil was in excess of that, at which oil could be
obtained from others. Therefore, it is only the attractiveness of
petitioner's offer that makes failure to take it up suggestive of
improper motives. However, it has been demonstrated
Page 391 U. S. 280
above that for Cities to enter into any deal with Waldron for
Iranian oil would have involved it in a variety of unpleasant
consequences sufficient to deter it from making any such deal.
[
Footnote 16] Therefore, not
only is the inference that Cities' failure to deal was the product
of factors other than conspiracy at least equal to the inference
that it was due to conspiracy, thus negating the probative force of
the evidence showing such a failure, but the former inference is
more probable.
Petitioner does attempt to point to other evidence besides the
simple failure to deal as showing conspiracy. [
Footnote 17]
Page 391 U. S. 281
He places considerable reliance on the report prepared for
transmission to Mossadegh in October, 1952, immediately after
Jones' return from Iran and Watson's announcement to Waldron that
Cities was no longer interested in Iranian oil. He stresses two
aspects of the report as evidencing Cities' participation in the
boycott: first, the statement that it was necessary for Iran to
come to some sort of agreement with the British (Anglo-Iranian was
owned 51% by the British Government) about compensation for the
concession rights and expropriated property, and, second, the
suggestion that there existed the possibility that an American
company (presumably Cities) would import some Iranian oil
purchased
Page 391 U. S. 282
directly from NIOC. It is interesting to note that petitioner
attempts to use this memorandum in two opposing ways. He suggests,
on the one hand, that the reference to the necessity for British
cooperation if the Iranian oil industry were to be reactivated is
evidence of Cities' adherence to the scheme initiated by
Anglo-Iranian to force Iran to return the properties, and, on the
other, that the statement that it would be possible for Iran to
sell substantial amounts of oil without such an agreement is
evidence of Cities' continued interest in Iranian oil. It is
difficult to see how the latter contention supports an inference of
conspiracy. Petitioner also ignores the fact that the latter
alternative was characterized by Jones in the report as less
desirable insofar as Iran's long-term interests were concerned, and
that, with regard to Cities' participation in such an arrangement,
Jones also stated that
"[d]evelopment of some method, possibly through agreement
between United States and British Governments, [would have to be
made] that would allow Iranian crude to move to U.S. markets
without tie-ups, law suits and other similar harassments to the
purchasers of the crude."
Petitioner also emphasizes the statement sent by Jones to the
incoming Secretary of State and Attorney General that the only
solution for Iran lay in some sort of accommodation with the
British. Since this was also the position taken, in effect, by the
other alleged conspirators, petitioner suggests that it too shows
common purpose. However, once Jones had decided that Cities could
not risk trying to break the boycott itself, it was merely a
factual observation to state that Iran would not be able to restore
the operation of its oil industry without some kind of agreement
being made with the boycotters. The use of the phraseology that
this was the only "honorable course" hardly changes the factual
background of the letter.
Page 391 U. S. 283
In addition, the statement is substantially similar to that made
in the report intended to be sent to Premier Mossadegh on which
petitioner relies to show Cities' continued interest in Iranian
oil. Petitioner himself notes that the agreement contemplated in
the report between Iran and Anglo-Iranian would involve an American
company (hopefully Cities) taking over the operation of the oil
industry, while Anglo-Iranian would be compensated for its
property. Since Anglo-Iranian was insisting that its property and
concession rights be returned to it outright, and was rejecting
proposals to substitute the payment of compensation therefor, this
proposal by Jones is not reasonably susceptible of the
interpretation sought to be placed on it by petitioner.
Moreover, the letter was accompanied by a legal memorandum,
stating that Iran had a right under international law to
nationalize its oil industry, that ran directly counter to the
consistent position taken by the other defendants in this case.
Indeed, it went to the heart of their defense, since one of the
arguments being made below is that the other defendants were merely
acting to protect their property rights.
See 231 F. Supp.
at 87.
Petitioner argues that the failure of the Richfield Oil Co. to
deal with him is evidence of conspiracy by Cities because Cities
was a major, although not a controlling, stockholder in Richfield.
However, aside from Cities' stock interest in Richfield, petitioner
has produced no evidence other than speculation to connect this
failure with any action by Cities. As for the probative value of
the failure to deal with Waldron, the same objection is applicable
to the proposed transaction with Richfield that has been discussed
in connection with the proposed deal with Cities, namely, the
probability that it was due to a desire to avoid difficulties that
would be presented by Anglo-Iranian and the other defendants.
Moreover, since petitioner's contract had expired by the
Page 391 U. S. 284
time the deal fell through, it is also possible that no
agreement was reached because Waldron no longer had anything to
offer. Therefore, the failure of petitioner to sell oil to
Richfield adds nothing to his case against Cities.
Finally, petitioner places great reliance on Jones' alleged
interference in his efforts to sell the United States Government a
cargo of gasoline for military use. One difficulty with this
contention is that the incident occurred at a time when, petitioner
conceded in the trial court, Cities was not yet a member of the
conspiracy. A more basic objection to it, however, is that it is
apparent that Jones, in his cable to the Secretary of the Interior,
was primarily concerned with disassociating himself from Carter's
efforts to promote the sale, efforts which Carter intended to tell
the Secretary were supported by Jones. Under those circumstances,
what petitioner characterizes as vindictive interference by Jones
appears far more likely to have been a desire not to be used in
someone else's financial dealings. In any event, it is insufficient
support, in light of all the other evidence, on which to base a
case for participation by Cities in the conspiracy.
C
In support of his contention that summary judgment against him
was improper, petitioner relies heavily upon
Poller v. Columbia
Broadcasting System, Inc., 368 U. S. 464
(1962). In
Poller, the plaintiff claimed that CBS canceled
its affiliation agreement with his UHF station pursuant to a
conspiracy between CBS and some third parties to drive him out of
business in order to give CBS a short-term monopoly of the UHF
market in the Milwaukee area, and ultimately to eliminate UHF
competition there entirely. The plaintiff introduced evidence
showing that CBS had canceled his affiliation, that it purchased
and affiliated with another UHF station in
Page 391 U. S. 285
competition with him, that he was driven out of business as a
result of the competition with the other station, and that,
subsequently, CBS terminated the operation of its station, thereby
leaving the Milwaukee market without any UHF service at all. CBS,
in turn, relied on evidence consisting largely of affidavits from,
and depositions of, various of its executives asserting that the
actions taken by it were the result not of conspiracy, but of its
legitimate business decision to enter into competition in the UHF
market in the Milwaukee area. The basic issue between the parties,
therefore, concerned the motives of CBS in canceling its
affiliation with the plaintiff Poller. This Court held that, where
there was substantial factual evidence tending to show the
existence of a conspiracy to eliminate a competitor, and where the
crucial question was motive, summary judgment was prematurely
granted against the plaintiff, notwithstanding the fact that there
was also substantial evidence tending to show the nonexistence of
conspiratorial behavior.
At first glance, the present case seems to present substantial
similarities to the situation in
Poller in that the issue
as to Cities' motive in failing to conclude a deal with petitioner
is likewise basic to the litigation here. However, there are
crucial differences between the two cases. In
Poller, the
competitive relationship between CBS and the plaintiff was such
that it was plausible for the plaintiff to argue that CBS had
embarked on a plan to drive him out of business. In this case, as
Waldron has admitted right along, the business relationship between
him, Cities, and the other defendants was such that it is much more
plausible to believe that Cities' interests coincided, rather than
conflicted, with those of petitioner. And, in fact, the course of
dealings between petitioner and Cities over the strenuous objection
of the other defendants gives ample evidence of
Page 391 U. S. 286
precisely this similarity of interest. As Waldron himself
candidly stated in the course of his deposition, he would not have
originally included Cities as a coconspirator had he not conceived
the idea that the ultimate failure of Cities to deal with him was
the result of some sort of payoff. Yet as described
supra
at
391 U. S.
263-264,
391 U. S. 267,
Cities has introduced overwhelming evidence that no such payoff was
ever made or promised to it in return for an agreement not to deal
with Waldron, a showing which petitioner has in no way rebutted.
Petitioner is thus forced to take the position that the one fact
that he has produced, Cities' failure to make a deal with him for
Iranian oil, is sufficiently probative of conspiracy to entitle him
to resist summary judgment.
In support of this position, petitioner relies heavily on
Interstate Circuit, Inc. v. United States, 306 U.
S. 208 (1939), and
Theatre Enterprises, Inc. v.
Paramount Film Distributing Corp., 346 U.
S. 537 (1954). In
Interstate Circuit, a group
of motion picture distributors, at the request of two large
first-run exhibitors, simultaneously imposed identical restrictions
on subsequent showings of the films they distributed. These
restrictions had the effect of forcing subsequent-run exhibitors to
raise their admission prices substantially in the direction of the
prices then charged by the competing first-run exhibitors at whose
behest the restrictions were imposed. This, in turn, tended to
restrain competition among the exhibitors by depriving the
subsequent-run exhibitors of much of their ability to compensate
for their competitive disadvantages by selling tickets at a
considerably lower price than that charged by the first-run
exhibitors. Other restrictions prohibiting the showing of double
features in subsequent-run theatres were imposed with similar
anticompetitive effects. There was no direct evidence showing that
the distributors agreed with one another to impose the identical
restrictions, but it was
Page 391 U. S. 287
shown that each distributor knew that all the other distributors
had been approached with the same proposal and that the imposition
of the restrictions would be feasible only if adhered to by all
distributors. Finally, it was shown that the identical action taken
had the effect of creating a likelihood of increased profits for
each distributor. This Court held that, on the foregoing facts, a
tacit agreement to restrain competition between the distributors
could properly be inferred.
Interstate Circuit differs from the case at hand in
precisely the same way that
Poller does, namely, in the
inferences of motive that can reasonably be drawn from the facts.
The reason that the absence of direct evidence of agreement in
Interstate Circuit was not fatal is that the distributors
all had the same motive to enter into a tacit agreement. Adherence
to such an agreement would enable them to increase their royalties
by forcing a rise in admission prices without the danger of
competitors enlarging their share of the subsequent-run market by
refusing to impose similar restrictions. That such a step would
also aid the first-run exhibitors proposing it to restrain
competition between themselves and subsequent-run exhibitors would
not significantly diminish the anticompetitive benefits to be
obtained by the distributors. Here, Waldron is unable to point to
any benefits to be obtained by Cities from refusing to deal with
him, and therefore the inference of conspiracy sought to be drawn
from Cities' "parallel refusal to deal" [
Footnote 18] does not logically follow.
Theatre Enterprises, also relied on by petitioner,
merely reiterated the holding of
Interstate Circuit that
"business behavior is admissible circumstantial evidence from which
the factfinder may infer agreement," 346
Page 391 U. S. 288
U.S. at
346 U. S. 540,
in the course of ruling that the parallel behavior there shown did
raise a conspiracy issue for the jury, which permissibly resolved
it in the defendants' favor on the basis of the other contrary
evidence in the case. It did not purport to deal with a situation
where the interests of the parties whose behavior was "consciously
parallel" were substantially divergent and thus is inapplicable
here. Thus, neither precedent nor logic supports petitioner's
contention that the evidence to which he points is significantly
probative of conspiracy and, therefore, we hold that, on the facts
as shown summary judgment was correctly awarded to respondent.
IV
Rule 56(e) of the Federal Rules of Civil Procedure states
that
"[w]hen a motion for summary judgment is made and supported . .
. an adverse party may not rest upon the mere allegations or
denials of his pleading, but his response . . . must set forth
specific facts showing that there is a genuine issue for
trial."
Petitioner contends that the lower courts misapplied Rule 56(e)
in this case and erroneously placed the burden on him to show that
there was a material issue of fact for trial, rather than first
requiring respondent Cities Service, the movant, to demonstrate the
absence of a "genuine issue as to any material fact" under Rule
56(c). However, it should be noted that the decisions below did not
purport to discuss burden of proof at all. Therefore petitioner
must demonstrate that, regardless of what was specifically held,
the effect of the decisions below was to so shift the burden of
proof.
It is true that the issue of material fact required by Rule
56(c) to be present to entitle a party to proceed to trial is not
required to be resolved conclusively in favor of the party
asserting its existence; rather, all that
Page 391 U. S. 289
is required is that sufficient evidence supporting the claimed
factual dispute be shown to require a jury or judge to resolve the
parties' differing versions of the truth at trial. The case at hand
presents peculiar difficulties because the issue of fact crucial to
petitioner's case is also an issue of law, namely the existence of
a conspiracy. What Rule 56(e) does make clear is that a party
cannot rest on the allegations contained in his complaint in
opposition to a properly supported summary judgment motion made
against him. [
Footnote 19]
Yet the analysis of the facts undertaken above demonstrates that,
due to the absence of probative force of Cities' failure to deal
with Waldron as being, in itself, evidence of conspiracy,
petitioner's position is, in effect, that he is entitled to rest on
the allegations of conspiracy contained in his pleadings. Thus,
petitioner repeatedly states that Cities has never disproved its
participation in the alleged conspiracy, despite the fact that the
only evidence of such participation is his allegation that the
failure to deal resulted from conspiracy.
Essentially all that the lower courts held in this case was that
Rule 56(e) placed upon Waldron the burden of producing evidence of
the conspiracy he alleged only after respondent Cities Service
conclusively showed that the facts upon which he relied to support
his allegation were not susceptible of the interpretation which he
sought to give them. That holding was correct. To the extent that
petitioner's burden of proof argument can be interpreted to suggest
that Rule 56(e) should, in effect, be read out of antitrust cases
and permit plaintiffs to get to
Page 391 U. S. 290
a jury on the basis of the allegations in their complaints,
coupled with the hope that something can be developed at trial in
the way of evidence to support those allegations, we decline to
accept it. While we recognize the importance of preserving
litigants' rights to a trial on their claims, we are not prepared
to extend those rights to the point of requiring that anyone who
files an antitrust complaint setting forth a valid cause of action
be entitled to a full-dress trial notwithstanding the absence of
any significant probative evidence tending to support the
complaint.
V
We have postponed our discussion of petitioner's contention that
he should have been permitted additional discovery prior to the
grant of summary judgment to this point in order that it may be
evaluated in the light of what he had succeeded in accomplishing as
of the date he made the motion.
A
Petitioner makes much of the fact that the present action has
been pending in the lower courts for 11 years and that he has not
yet received a formal answer to his complaint from any defendant
nor been permitted any general discovery. Petitioner also complains
of the inequity of his being faced with a motion for summary
judgment after having been deposed for thousands of pages by the
defendants, but before he has had an opportunity to obtain
discovery from them. In particular, he emphasizes that, in an
antitrust conspiracy case discovery is vital because most of the
evidence of conspiracy will naturally be in the hands of the
defendants. However, petitioner fails to come to grips with the
problems presented in this extremely complicated suit by the fact
that one of the defendants, Cities Service, has from the beginning
of the litigation attempted to disassociate itself
Page 391 U. S. 291
from the others on the ground that, as petitioner himself
acknowledged and initially alleged, it was in a totally different
position from the other defendants.
Thus, when petitioner emphasizes the considerable discovery had
of him by the defendants as a group, he implies that Cities has
been unfairly permitted more discovery of him than he has of it. He
attempts to minimize the significance of the fact that Cities'
participation in his examination amounted to a total of 3 1/2 days
of deposition testimony by arguing that Cities benefited from the
extensive examination conducted by the other defendants. The record
reveals, however, that much of the evidence obtained by the other
defendants in deposing petitioner and his associates is relied on
heavily by petitioner himself to bolster his case against Cities.
Had the record in this case consisted only of the evidence obtained
by petitioner from Cities together with the testimony taken by
Cities from Waldron, petitioner' case against Cities would be even
weaker than it is. In fact, petitioner would undoubtedly have
chosen to submit affidavits in opposition to Cities' motion for
summary judgment containing much of the same material incorporated
in his and his associates' depositions. Hence, petitioner benefited
as much
vis-a-vis Cities from the depositions taken by the
other defendants as Cities did. Under such circumstances,
petitioner cannot justifiably claim that Cities has been given an
unfair advantage by the extent of his examination by the other
defendants.
As for petitioner's general objections to the length of time
that his case has been pending, it is clear that Cities Service has
been the only party to the litigation that has exhibited any
consistent desire to expedite the proceedings, and that, even where
postponements and adjournments have been sought by either Cities or
the other
Page 391 U. S. 292
defendants, petitioner has always been willing to acquiesce in
delay. [
Footnote 20]
Certainly petitioner cannot claim that it was the responsibility of
the trial judge to hurry matters along by rejecting stipulations
entered into by all the parties to the case.
Petitioner's more vehement objections have to do with his claim
that he has been stayed from obtaining general discovery of the
other defendants in the case throughout the period during which he
has sought to build a case against Cities. Since there is no
indication that petitioner will be unable to obtain general
discovery at some future date of the other defendants for use
against them in the case still pending below, the issue here is
whether he can compel Cities to remain a party to the litigation
pending such general discovery. Assuming the correctness of
petitioner's claim that he has been stayed from conducting such
discovery (a claim disputed not altogether unpersuasively by
respondent), the fact remains that petitioner has had discovery of
the one party he is presently opposing and, therefore, his right to
additional discovery must depend on the strength of his argument
that it is necessary to his case against that party.
Page 391 U. S. 293
While petitioner now asserts that he has been vigorously
demanding discovery of the other defendants right along, the record
reveals that, back in 1960, on one of the occasions at which
petitioner claims to have requested such discovery, his counsel
stated,
"I think the obvious place to begin is with Cities Service . . .
, and whether we need to go farther than that, I don't know, and it
would depend very much on what turned up there. . . ."
It was only after two examinations of Cities Service personnel
that petitioner finally made a formal motion for discovery of the
other defendants in anticipation of Cities' renewal of its motion
for summary judgment. In support of this motion, petitioner was
able to point to no significant evidence that he had turned up to
show any dealings between Cities and the other defendants, other
than the largely abandoned Kuwait oil transaction. His basic
argument was, and is, simply the general proposition that, in a
conspiracy case, the evidence is usually in the hands of the
conspirators, and that, therefore, he should have been permitted to
examine the other alleged conspirators to see if he could obtain
anything from them that would tend to link Cities to them.
It is probably true that, in the ordinary conspiracy case, a
plaintiff would be entitled to obtain discovery against all the
alleged conspirators instead of being obligated to proceed against
them
seriatim. However, in this case, by the plaintiff's
own doing, one of the alleged conspirators was singled out from the
rest as having joined the conspiracy at a much later date as the
result of specific inducements. Being placed by petitioner's
complaint in the position of being what might be termed a
tangential defendant, Cities legitimately attempted to extricate
itself from an expensive and protracted lawsuit. We do not mean to
imply that a plaintiff should be
Page 391 U. S. 294
barred from changing the theory of his case in response to
information he obtains in the course of discovery. But when the
evidence so obtained shows both that the defendant is, in fact,
tangential and that the allegations by which he was linked to the
other defendants are factually incorrect, we think that a burden
should indeed be placed on the party changing his theory to show a
significant likelihood that discovery of the other defendants would
produce evidence different from that obtained thus far. In this
case, petitioner has only speculation as to what discovery of the
other defendants would reveal about their relations with Cities
Service, and not very persuasive speculation at that, since all the
evidence thus far produced by any party on this subject supports
the hypothesis that Cities was opposed to the other defendants,
rather than in collusion with them. Accordingly, it was not error
on the part of Judge Herlands, on these facts, to deny that portion
of petitioner's motion in opposition to summary judgment that
requested general discovery of all the other defendants in this
case.
B
Petitioner acknowledges the fact that he has had some discovery
of Cities Service pursuant to court order. However, he contends
vigorously that the discovery he has obtained has been too limited
to enable him adequately to resist the motion for summary judgment.
Petitioner points out that he was initially limited to taking the
deposition of Hill instead of Jones, notwithstanding the fact that
Jones was the person at Cities with whom he primarily dealt with
regard to the Iranian oil situation. He claims prejudice from the
fact that Jones died before he could be deposed in that those
Cities' personnel whom he eventually deposed, namely, Watson,
Frame, and Heston, were not an adequate substitute for
Page 391 U. S. 295
Jones. He also argues that he should have been allowed to depose
Carter. Finally, petitioner asserts that his examination of the
three executives was improperly limited in scope by Judge Herlands,
and that he should have been permitted general access to Cities'
files for all documents in connection with Cities' activities in
Iranian oil between the time he first approached Cities and 1955 in
order to compensate for his inability to examine Jones.
It has already been observed [
Footnote 21] that the absence of testimony from Jones in
this litigation is largely happenstance, since there is absolutely
no indication that Judge Herlands would not have permitted him to
be deposed when Watson, Frame, and Heston were examined had he been
available. In addition, while it is doubtless true that Jones, as
president of Cities, could have testified more authoritatively with
regard to certain of the questions concerning Cities' dealings in
Iranian oil, petitioner's consistent attempt to portray those
Cities executives who were deposed as uninformed underlings is
substantially overstated. Notwithstanding some areas of ignorance,
Watson, Frame, and Heston were privy to a considerable amount of
information in connection with Cities' dealings both with Iran and
with the other defendants. While Jones may have been the dominant
figure in the Cities operation, it is simply unrealistic for
petitioner to suggest that Jones could have involved Cities in a
conspiracy on the scale which is alleged to have existed here
without any knowledge on the part of the other major executives of
the company.
Petitioner's desire to depose Carter, which appeared for the
first time in the litigation at this late date, is interesting in
light of the fact that originally Carter had been listed as one of
petitioner's associates, and the defendants had formally noticed
their intention to depose
Page 391 U. S. 296
him in that capacity. Petitioner does not adequately explain
why, if such were, in fact, the case, he required a court order to
examine Carter, who was not an employee of Cities. It should be
emphasized in this connection that, so far as appears from the
record, petitioner has introduced absolutely no evidence on his own
behalf in this case except the deposition testimony obtained from
himself and his associates by the defendants and the testimony and
documents obtained from Cities pursuant to Judge Herlands' various
discovery orders.
Petitioner's counsel stated in his affidavit attached to the
discovery motion that Carter became an adherent of Cities
immediately after petitioner filed his complaint and implied that
Carter would not voluntarily testify. Assuming that to be true,
although such an assumption seems open to question in view of the
absence of any specific allegation to that effect, [
Footnote 22] no explanation is proffered as
to why petitioner did not try to obtain discovery of Carter earlier
if his testimony were thought necessary to petitioner's case.
Petitioner was aware long before late 1964 that Cities was
contending that it was not a member of any conspiracy that may have
existed between the other defendants, and that it resisted being
put to the expense of participating in what showed every sign of
being an extremely protracted litigation. Given the fact that Judge
Herlands had stated, in declining to grant Cities' original motion
for summary judgment back in 1961, that he regarded petitioner's
case against Cities as extremely weak, it seems quite proper to
infer from the timing of petitioner's initial request to depose
Carter that he did not regard Carter as someone whose
Page 391 U. S. 297
testimony was significantly likely to help him resist a motion
for summary judgment. On the contrary, the timing of the initial
request suggests strongly that petitioner was more interested in
establishing grounds on which to contend that Cities' motion for
summary judgment should not yet be granted than he was in actually
discovering what evidence Carter was in a position to furnish to
him. There is no real indication, despite his arguments to the
contrary, that petitioner obtained information in the course of his
prior discovery that made Carter a more vital witness in 1964 than
he would have been in 1961 or 1963.
As for petitioner's documentary requests, and his complaints
about improper limitation of his previous discovery presented in
support thereof, it is apparent that the time period to which they
relate is in large part a period during which petitioner was no
longer having any dealings with Cities. This is important because,
of two factors crucial to Waldron's conspiracy charge against
respondent: first, petitioner argues that Cities joined the
conspiracy when it refused to go through with a deal through him
for Iranian oil, namely, in the latter part of 1952, and second,
petitioner's contract with NIOC, the property right allegedly
interfered with by the illegal boycott, expired in the spring of
1953. In addition, petitioner had, at the time of this motion,
already obtained discovery of a very substantial number of
documents having to do with Cities' dealings in Iranian oil prior
to November 1, 1952, the latest point in time ever seriously
suggested by petitioner for Cities to have joined the
conspiracy.
In a proper case, of course, a party might well have the right
to demand discovery of documents from an opposing party dealing
with activities during a period outside that covered by the subject
matter of the lawsuit
Page 391 U. S. 298
in order to provide some indication of the ramifications of the
actions forming the basis of the complaint. We do not doubt that,
had petitioner introduced some significant evidence that Cities had
become a member of the conspiracy alleged in his complaint, more
extended discovery under Rule 56(f) of Cities' activities
subsequent to its refusal to deal with him would have been proper.
Likewise, given sufficient evidence of conspiracy, broader access
to Cities' files for the period within which petitioner had already
had discovery would have been in order. But, in this case,
petitioner was attempting, in effect, to obtain discovery of
peripheral aspects of Cities' alleged participation in the
conspiracy, after having failed, despite already substantial
discovery, to obtain any significant evidence of conspiracy for the
period during which it was alleged to have directly injured him. It
is precisely because the discovery obtainable under Rule 56(f)
[
Footnote 23] to oppose a
motion for summary judgment would normally be less extensive in
scope than the general discovery obtainable under Rule 26, that
such a manner of proceeding was properly refused here.
Notwithstanding Waldron's complaints about the limitations placed
on his discovery of materials and witnesses, it is evident that he
has had sufficient discovery either to substantiate his claims of
conspiracy to the extent of raising a material issue of fact
thereon, or of providing a basis for investigation of his own to
gather additional evidence during the five years for which Cities'
motion was pending below. The fact that petitioner accomplished
neither of these ends with the discovery he obtained is ample
support for the trial judge's determination that additional
discovery would be futile, and would merely operate to require
Cities to participate
Page 391 U. S. 299
further in litigation in which it had been originally joined
solely on the basis of conjecture.
For the foregoing reasons, we hold that summary judgment was
properly awarded in the courts below to respondent.
Affirmed.
MR. JUSTICE DOUGLAS took no part in the decision of this
case.
[
Footnote 1]
Plaintiff, Gerald B. Waldron, died in November, 1964. His
executor has been substituted as the petitioner. We shall refer to
both Waldron and the executor as "petitioner" or "Waldron"
interchangeably.
[
Footnote 2]
Gulf subsequently settled with petitioner and is no longer a
party defendant, although it remains as an alleged
coconspirator.
[
Footnote 3]
This practice has since been changed by rule.
See 4
Moore, Federal Practice � 26.13[3], at 1154 (2d ed.1967).
[
Footnote 4]
Anglo-Iranian was a co owner of the Kuwait Oil Co., the actual
holder of the entire Kuwait oil concession, but does not appear to
have participated in the negotiations with Cities.
[
Footnote 5]
Petitioner argues that a "most favored nations clause" was
inserted at the last minute for the benefit of Cities. The record
reveals that the so-called clause was simply a unilateral
declaration from Gulf in the form of a letter from its chairman of
the board that, in the event of future price changes, its policy
would be to give Cities the benefit of the better price.
[
Footnote 6]
231 F. Supp.
72
[
Footnote 7]
Cities' president, W. Alton Jones, died in an airplane crash on
March 1, 1962. Three other Cities' executives who had participated
in varying degrees in Cities' exploration of the possibility of
purchasing Iranian oil had also died by this time.
[
Footnote 8]
Although petitioner's discovery motion preceded respondent's
renewal of its summary judgment motion, it is evident that
petitioner's motion was made with full knowledge that a renewal of
respondent's motion would soon be forthcoming. In a very real
sense, it was thus a response to the summary judgment motion and
was intended to serve as a ground for arguing that the motion
should not be granted.
[
Footnote 9]
38 F.R.D. 170.
[
Footnote 10]
361 F.2d 671 (1966).
[
Footnote 11]
Documents covering internal Cities' discussion of these matters
were also ordered to be produced for the period from October 1,
1952, to November 1, 1952.
[
Footnote 12]
See n 7,
supra.
[
Footnote 13]
For the purpose of evaluating Waldron's case against Cities, his
allegations about a conspiracy to boycott him carried out by the
other defendants herein must be taken both as true and as legally
sufficient. We, of course, intimate no opinion on the merits of
petitioner's claims against the other defendants that are still
pending below.
[
Footnote 14]
At this date, Watson was Cities' senior vice-president. He
subsequently became chairman of the board.
[
Footnote 15]
This percentage was made up of the three equal shares initially
awarded to Richfield, Cities, and the Sinclair Oil Corp. (Sinclair
also held about a one-third stock interest in Richfield.) Cities
and Sinclair both transferred their shares to Richfield, apparently
for no consideration.
[
Footnote 16]
In his brief in this Court, petitioner drastically changes his
theory of conspiracy. He now argues that Cities' participation in
the conspiracy was obtained by threats of retaliation from the
other defendants. While conceivably petitioner could have argued at
the trial level that, under such cases as
Klors, Inc. v.
Broadway-Hale Stores, Inc., 359 U. S. 207
(1959), and
United States v. Parke, Davis & Co.,
362 U. S. 29
(1960), acquiescence because of threats in an illegal scheme
conceived and carried out by others for their own benefit makes the
acquiescing party a member of an illegal combination, we decline to
pass upon such a contention when it is presented for the first time
in this Court. Although, at one point in this complex and
protracted case, which has thus far produced over 12,000 pages of
record, the petitioner alleged that the other defendants have
"secretly threatened, induced and conspired with defendant Cities
Service to break off all dealings with plaintiff," this intimation
of a coerced acquiescence theory was never properly pursued.
Klors and
Parke, Davis have not been cited or
discussed by petitioner once in the entire course of these
proceedings. One searches in vain among petitioner's papers prior
to argument in this Court for a single intelligible statement of
this theory. In these circumstances, we cannot attribute error to
the courts below for their failure to discern such a theory, nor
would it be appropriate at this stage in the case for us to pass
upon petitioner's theory of combination through coerced
acquiescence and the accompanying difficult questions it would
raise concerning Cities' liability to petitioner or possible rights
over against the other defendants.
[
Footnote 17]
Petitioner argues that Cities has thus far failed specifically
to deny the allegations in his complaint charging it with
conspiracy. In his original complaint petitioner charged that
Cities
"[a]t this time and by these acts [referring to the Kuwait deal
and the Consortium Agreement] . . . entered into combination and
conspiracy with the other defendants."
Cities submitted an affidavit denying that Kuwait oil and a
share in the Consortium had been given it as part of a conspiracy.
In other words, Cities denied the factual allegations of
petitioner, but not the ultimate legal conclusion based thereon,
namely conspiracy. A fair reading of that document requires that it
be given its intended effect as a denial of petitioner's claim
against Cities. Moreover, petitioner never made this argument in
either of the lower courts (especially not in the District Court
where Cities could have remedied any defects in the papers
supporting its motion had they been pointed out in time), and we
are not disposed to consider it now, particularly in light of its
extreme technicality as applied to the facts of this case.
Petitioner also objects that only W. Alton Jones could have
adequately denied the allegations of conspiracy, and urges,
therefore, that Cities' submission of such an affidavit from Hill,
rather than from Jones, should be held against Cities as evidence
of conspiracy. However, as previously pointed out, Hill was the
natural person to respond to petitioner's factual allegations about
Kuwait and the Consortium.
See supra at
391 U. S. 271.
Contrary to petitioner's characterization of Hill as an attorney
and an underling, Hill was an executive vice-president of Cities,
who had gone to law school many years before but who had not
practiced law in a long time. As for petitioner's failure to
examine Jones, that has been shown above to be due basically to his
own lack of diligence.
See also n 20,
infra.
[
Footnote 18]
See generally Turner, The Definition of Agreement Under
the Sherman Act: Conscious Parallelism and Refusals To Deal, 75
Harv.L.Rev. 655 (1962).
[
Footnote 19]
Indeed, it was for the precise purpose of overturning a line of
cases in the Third Circuit holding that a party could successfully
oppose summary judgment by relying on his well pleaded allegations
that Rule 56(e) was amended in 1963.
See 6 Moore, Federal
Practice � 56.22[2], at 2821 (2d ed.1966).
[
Footnote 20]
It must be remembered that the fact that approximately six years
had elapsed between the date petitioner filed his complaint and the
completion of the examination of petitioner and his associates is
in no way the responsibility of the trial judge. Both parties had,
as previously described, entered into numerous stipulations
postponing the taking of depositions for months at a time.
Petitioner argues that he cannot be penalized for not working full
time at supplying the defendants with deposition testimony. This is
certainly correct. However, petitioner cannot, by the same token,
attempt to penalize respondent for delays in which he acquiesced
with no hint of objection. Certainly no one will contend that over
5 1/2 years represents an example of the speed that a party
interested in securing a swift resolution of his claims will
require in order for himself and his associates to give 153 days of
testimony.
[
Footnote 21]
See supra at
391 U. S.
272.
[
Footnote 22]
In fact, the affidavit submitted by petitioner's counsel in
support of his discovery motion is replete with references to the
ill-use Carter allegedly suffered at the hands of Cities -- rather
an unpersuasive argument in support of the suggestion that, in some
way, Cities had prevented Waldron from obtaining access to
Carter.
[
Footnote 23]
Petitioner conceded below that his discovery should proceed
under Rule 56(f), rather than Rule 26.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE
BRENNAN join, dissenting.
The Court here upholds a summary judgment against a plaintiff in
a suit for treble damages under the Sherman Antitrust Act. The case
is a complex one in which the summary judgment was entered 11 years
after the action was brought. It is strange, indeed, that, during
the more than 11 years before the summary judgment was entered, the
defendant Cities Service should have enjoyed the luxury of never
having been compelled by the court to answer the complaint, never
having been required either to admit or deny the plaintiff's
charges that the defendant had entered into a conspiracy to destroy
plaintiff's business by boycotting it. There is one thing still
stranger and more fantastic about the case; although the court
permitted the defendants to interrogate the plaintiff for 153 days
over a period of 5 1/2 years, the same court refused during the 11
years to permit the plaintiff to ask any questions whatever of many
of Cities' officers and employees who were most familiar with
transactions about which the plaintiff complained. And all this was
done in the face of our holding in
Poller v. Columbia Broadcast
System, Inc., 368 U. S. 464,
368 U. S. 473
(1962), that "summary procedures should be used sparingly in
complex antitrust litigation" and that "[t]rial by affidavit is no
substitute for trial by jury which so long has been the hallmark of
even handed justice.'"
Page 391 U. S.
300
The following statement of the way this summary judgment was
entered is sufficient, I think, to show the gross error of the
Court's affirmance of he judgment.
In 1956, petitioner Waldron [
Footnote 2/1] brought suit against the Standard Oil
Company (New Jersey) and six other major oil companies including
Cities Service Co., the respondent here. The complaint alleged a
general conspiracy beginning in 1928 on the part of all the
defendants but Cities. It was alleged that Cities joined the
conspiracy after the Government of Iran nationalized the properties
of the Anglo-Iranian Oil Company in May, 1951, and that the
defendants conspired together to prevent petitioner Waldron from
selling any of the Iranian oil. To carry out the boycott, the
alleged conspirators threatened all other companies with dire
economic consequences if they dealt in the Iranian oil. Despite
these threats, Cities, which did not control sources of oil
adequate to supply its customers and which therefore had been
compelled to buy from the major companies, expressed to petitioner
a desire to obtain Iranian oil. Petitioner was offering to sell the
Iranian oil on very attractive terms, and Cities agreed to go to
Iran in order to evaluate the prospects, provided it received an
invitation from Iranian Premier Mossadegh. Petitioner thereupon
went to Iran, secured a written invitation from the Premier, and,
in due course, the President of Cities Service, W. Alton Jones,
went to Iran, taking with him other high Cities officials who, as
experts, could help him appraise the possibilities of operating the
old Iranian plants. Petitioner Waldron also went along. The
investigation in Iran was made, but, during the trip, Jones made a
secret side-trip to Kuwait to pursue negotiations for buying oil
from Gulf
Page 391 U. S. 301
Oil, one of the alleged conspirators. Jones' associates did not
accompany him on this trip to Kuwait, and Cities made every effort
to conceal the secret visit from petitioner. In fact, as late as
1960, during the course of this lawsuit, Cities continued to deny
that Jones had ever gone to Kuwait while on the Iranian trip; the
fact was not finally revealed until 1964, when petitioner was at
last permitted to question some of the Cities officials who had
been involved in the Iranian trip.
After the trip to Iran, Cities officials prepared a memorandum
reporting favorably on the prospects for using Iranian oil, but
then, in October, 1952, Cities abruptly informed Waldron that it
had no further interest in the Iranian oil which petitioner was
offering on such favorable terms. The intense pressure to which
Cities was being subjected at this time by the major companies is
suggested by an incident that occurred only a month later at the
annual convention of the American Petroleum Institute. Jones,
President of Cities, had been slated to receive the Institute's
gold medal for being selected oil man of the year, but, at the
meetings, representatives of the major companies threatened Jones
that they would cut off Cities' supplies of its sorely needed crude
oil if he dealt further in Iranian oil, and he was not presented
with the gold medal. Three months later, the agreement between
Cities and Gulf for the purchase of the Kuwait oil was formally
executed. Then, after petitioner's efforts to sell the Iranian oil
had completely failed, the Iranian Government was forced to agree
to turn over the nationalized properties to a Consortium of the
major oil companies, and Cities was granted a small share in the
Consortium.
Petitioner's antitrust complaint charged that Cities, which
previously had eagerly pursued the prospect of purchasing Iranian
oil, had changed its views and had forgone its chance to make the
"billions" that Jones had
Page 391 U. S. 302
foreseen, in order to get the Kuwait oil and membership in the
Consortium. After the complaint was filed, Cities examined
petitioner at length, at the same time getting the court to
postpone its time for answering the complaint until after these
examinations could be completed. Then Cities filed affidavits
charging that petitioner's allegations about the Kuwait and
Consortium deals had no basis in fact, and moved for summary
judgment. The court deferred ruling on the summary judgment motion,
but, at the same time, refused to permit petitioner to obtain
general discovery to enable him to prove his case against Cities;
instead, the court authorized a limited discovery relating only to
the Kuwait purchase and the Consortium arrangement; petitioner's
inquiry was also sharply limited both as to the subject matter and
the time period of any transactions that could be questioned. At
the same time, the court refused to permit petitioner to take the
deposition of Jones and those of his associates who had the
greatest opportunity to know the reasons for the drastic change in
Cities' attitude on buying Iranian oil. The Court instead ordered
that only George H. Hill, a Cities vice-president who had never met
petitioner or known anything about the Iranian oil deal but who had
been in charge of negotiating the Kuwait deal and who had led
Cities' attempts to obtain a share in the Consortium, would be
required to answer petitioner's questions.
After taking the deposition of Hill, petitioner filed an amended
complaint which eliminated his specific reliance on the Kuwait and
Consortium deals and stressed generally that Cities' participation
in the conspiracy had been obtained by threats and inducements from
the principal conspirators. The court again postponed a ruling on
Cities' motion for summary judgment, and ordered that petitioner be
permitted to make some further discovery, but once again the scope
of discovery permitted
Page 391 U. S. 303
to petitioner was sharply limited. In addition, Cities'
president, Jones, had died during the period when petitioner was
restricted by the court's order to taking only the deposition of
Hill, and thus petitioner was never able to question the one man
who was the crucial figure in the alleged Iranian transactions. Of
the seven other Cities officials who had been involved in these
transactions, three had also died during the long period in which
the court had stayed petitioner from taking their depositions.
In spite of the fact that petitioner had amassed considerable
evidence of Cities' liability, in spite of the fact that Cities had
been given unrestricted freedom to question petitioner while
petitioner was barred from getting any information at all from
Cities employees familiar with the Iranian transactions, in spite
of the fact that the discovery eventually allowed to petitioner had
been sharply restricted, in spite of the fact that petitioner never
had an opportunity to question four of the eight Cities officials
who had been most intimately connected with the alleged
transactions, and in spite of the fact that Cities had never been
required to answer the allegations of the complaint, the court
entered summary judgment for Cities in September, 1965. 38 F.R.D.
170 (1965). The Court of Appeals, in a short, uninformative
opinion, affirmed the decision of the District Court. 361 F.2d 671
(C.A.2d Cir. 1966).
I
The Court's action in affirming this judgment cannot possibly be
reconciled with this Court's holding in
Poller v. Columbia
Broadcasting System, supra. There, the Court warned against
using summary judgments to decide complex antitrust litigation
where motive and intent play leading roles. This is just such a
case. Its complexity is such that, even with a summary judgment, it
took 11 years to end it. Literally months and years were spent
Page 391 U. S. 304
in examining plaintiff, in getting affidavits and holding
numerous hearings. It is little less than farcical to treat a case
that eats up that much time as one suitable for a summary judgment.
It certainly would not have taken one-tenth of that much time to
give the case a full-dress trial, where sworn testimony before a
jury, rather than affidavits presented to a judge could have been
used to adjudicate plaintiff's rights in accordance with due
process of law. An excuse for summary judgments has always been
that they save time. If the time has come when the best speed
record they can make is to take 11 years to decide one of them, the
idea of summary judgments as time-savers is a snare and delusion,
and the best service that could be rendered in this field would be
to abolish summary judgment procedures root and branch. The plain
fact is that this case illustrates that the summary judgment
technique tempts judges to take over the jury trial of cases, thus
depriving parties of their constitutional right to trial by
jury.
It seems clear to me that, even with petitioner's very limited
opportunity to gather evidence in support of his case, there is
ample evidence in this record from which a jury could conclude that
respondent Cities did indeed join the alleged conspiracy.
Petitioner established that Cities needed Middle East oil, that he
was offering Iranian oil on very attractive terms, and that Cities
had in a number of ways manifested its considerable interest in
purchasing this oil. Suddenly, Cities announced to petitioner that
it did not intend to pursue the deal any further, and, in fact,
took steps to make more difficult petitioner's efforts to sell the
oil to others. [
Footnote 2/2] This
refusal
Page 391 U. S. 305
to deal could, of course, be explained by a number of
motivations, but petitioner contends that this record raises the
significant possibility that Cities action was predominantly
motivated not by legitimate business considerations, but rather by
a decision to join the alleged conspiracy, induced either by
threats of the conspirators or by a payoff in the form of the
Kuwait and Consortium deals. The Court rejects each of these
theories, although for sharply contrasting reasons, and concludes
that, despite the possible illegitimate motivations, evidence now
in the record suggests that other motivations were, in the Court's
opinion, more probable. As I have already indicated, I could never
accept this as the appropriate standard, under
Poller,
supra, for determining whether a defendant in a case such as
this is entitled to summary judgment.
II
The Court in this case has deprived plaintiff of his right to
discovery on highly technical and wholly indefensible grounds. The
heart of the complaint here was that Cities Service and others
conspired to boycott plaintiff's sale of Iranian oil by use of
threats and monopoly power in violation of the antitrust acts. Rule
56(e) comprehensively provides for the use of depositions and
affidavits, and Rule 56(f) provides that, where it appears that
affidavits are unavailable, the Court may refuse the application
for summary judgment, or may order a continuance to permit
affidavits to be obtained, or make such other order as is just.
Thus, it appears that the
Page 391 U. S. 306
rules contemplate that a party may not be shut off from an
opportunity to get affidavits to give him his day in court. No
judge is granted power under Rule 56 or any other rule to
completely deny a party all opportunity to take depositions or to
get affidavits essentially needed to get a fair trial of his case.
Such a course of conduct cannot possibly be called "just" within
the meaning of Rule 56(f), and yet, here, this plaintiff, over a
course of years, repeatedly pleaded with the district judge for an
opportunity to examine Jones and other Cities Service employees
particularly familiar with the Iranian oil deal in order to present
facts he had no other way to obtain. Of course, a party who is
suing a company and who is dependent for proof on company employees
must have the force of the law behind him or he cannot get
testimony from such employees against their company. That the
rulemakers did not intend any such burdens to be imposed upon
discovery is also shown by Rule 27, which even authorizes
depositions to be taken, before any suit is filed, by any person
who fears or expects that he may be a party to an action.
The excuse given by the trial court for cutting off plaintiff's
right to discovery here will not hold water. It was that, by
pleading at one time that there were two possible reasons for
Cities' joining the conspiracy to boycott, he was perforce
eternally barred from examining the defendants about any reasons
other than those two in order to get more complete information as
to why they conspired. To uphold this view of the District Court is
to treat a lawsuit as a game in which the party who gets there
first with the most questions wins the game. But lawsuits are not
games. The end of each one of them, if courts remain true to the
ancient traditions of justice, is to try each case in a way that
permits truth to triumph. That has not been done here. This
Page 391 U. S. 307
petitioner was and is yet entitled to examine the Cities Service
employees still living who know about this case. Law and justice
require it. Too much time has already been wasted in an effort to
provide a summary disposition of a case that should not be disposed
of that way.
I would reverse the case and direct that it go to trial.
[
Footnote 2/1]
The original plaintiff Waldron, like several crucial witnesses
in this case, is dead, and this action is now being carried on by
his executor. For the sake of clarity I will refer to the original
plaintiff Waldron as the petitioner here.
[
Footnote 2/2]
Thus, Cities' President, Jones, instructed an associate to cable
the Secretary of the Interior to advise the United States
Government against purchasing gasoline from petitioner for military
use. Although, in the Court's view, this cable was "primarily"
designed to disassociate Jones from petitioner's efforts to promote
the sale,
ante at
391 U. S. 284, this is certainly a rather narrow view of
a cable that explicitly states, "I seriously question wisdom of
such action." In any event, I cannot understand how this Court can
justify taking from the jury the responsibility for judging the
primary purpose and effect of a piece of evidence such as this.