Redwing Carriers, Inc., a Florida Corporation v. McKenzie Tank Lines, Inc., a Florida Corporation

Fifth Circuit

Redwing Carriers, Inc., a Florida Corporation v. McKenzie Tank Lines, Inc., a Florida Corporation

594 F.2d 114, 1979 U.S. App. LEXIS 15105

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 27, 1979

Docket78-1362

StatusPublished

Cited by8 cases

This text of 594 F.2d 114 (Redwing Carriers, Inc., a Florida Corporation v. McKenzie Tank Lines, Inc., a Florida Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Redwing Carriers, Inc., a Florida Corporation v. McKenzie Tank Lines, Inc., a Florida Corporation, 594 F.2d 114, 1979 U.S. App. LEXIS 15105 (5th Cir. 1979).

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Opinion

PER CURIAM:

We affirm on the basis of the district court’s opinion, reported at 443 F.Supp. 639 (N.D.Fla., 1977), plus the following two points. This court’s decision in Northwest Power Products, Inc. v. Omark Industries, 576 F.2d 83, 90 (CA5, 1978), confirms the district court’s rejection of the Pick-Barth per se rule. Albert Pick-Barth Co. v. Mitchell Woodbury Corp., 57 F.2d 96 (CA1), cert. denied, 286 U.S. 552, 52 S.Ct. 503, 76 L.Ed. 1288 (1932). Second, at oral argument, appellant contended that it produced sufficient evidence of a rule of reason theory to withstand summary judgment. We disagree. At the time McKenzie Tank Lines began hauling molten sulphur in 1976, Redwing had 100% of the relevant market. The fact that McKenzie had ICC and state certificates to haul molten sulphur prior to 1976 does not change the fact that Redwing controlled 100% of the market. Assuming McKenzie was a competitor before the alleged conspiracy began, Redwing is still not able to prove an injury to competition. Pri- or to the alleged conspiracy there were two haulers with the necessary certificates, one with 100% of the business and the other with only the certificates. Assuming further that McKenzie succeeded in eliminating Redwing, the market structure would remain the same, one hauler with 100% of the business and the other with only the certificates. •

AFFIRMED.

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PER CURIAM:

We affirm on the basis of the district court’s opinion, reported at 443 F.Supp. 639 (N.D.Fla., 1977), plus the following two points. This court’s decision in Northwest Power Products, Inc. v. Omark Industries, 576 F.2d 83, 90 (CA5, 1978), confirms the district court’s rejection of the Pick-Barth per se rule. Albert Pick-Barth Co. v. Mitchell Woodbury Corp., 57 F.2d 96 (CA1), cert. denied, 286 U.S. 552, 52 S.Ct. 503, 76 L.Ed. 1288 (1932). Second, at oral argument, appellant contended that it produced sufficient evidence of a rule of reason theory to withstand summary judgment. We disagree. At the time McKenzie Tank Lines began hauling molten sulphur in 1976, Redwing had 100% of the relevant market. The fact that McKenzie had ICC and state certificates to haul molten sulphur prior to 1976 does not change the fact that Redwing controlled 100% of the market. Assuming McKenzie was a competitor before the alleged conspiracy began, Redwing is still not able to prove an injury to competition. Pri- or to the alleged conspiracy there were two haulers with the necessary certificates, one with 100% of the business and the other with only the certificates. Assuming further that McKenzie succeeded in eliminating Redwing, the market structure would remain the same, one hauler with 100% of the business and the other with only the certificates. •

AFFIRMED.

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594 F.2d 114, 1979 U.S. App. LEXIS 15105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/redwing-carriers-inc-a-florida-corporation-v-mckenzie-tank-lines-inc-ca5-1979.

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