Unpublished Disposition, 935 F.2d 275 (9th Cir. 1991)

MEMORANDUM^* 

Pacific Plastics appeals the district court's 41(b) dismissal under the rule of reason analysis of its antitrust claims, an adverse summary judgment on its Robinson-Patman claims and on the per se analysis of its antitrust claims, and the district court's refusal to award consequential damages for appellee Goodrich's breach of contract.

In granting the 41(b) dismissal, the district court made two critical findings: 1) appellees had not conspired to restrain trade, and 2) appellees had not engaged in predatory pricing. Reviewing these findings of fact under the clearly erroneous test, Great American Houseboat Co. v. United States, 780 F.2d 741, 746 (9th Cir. 1986), we hold that they are not. Accordingly, the dismissal of appellant's Sherman Act claims under the rule of reason test is affirmed.

Appellant also asks us to reverse the district court's holding on summary judgment that the contractual pricing formula in this case is not illegal per se under the Sherman Act. We affirm the district court without the necessity of deciding this question. In the absence of predatory pricing, appellant can show no antitrust injury and thus has no standing to pursue its claim. Atlantic Richfield Co. v. USA Petroleum Co., --- U.S. ----, 110 S. Ct. 1884, 1893 (1990).

We also affirm the summary judgment on appellant's Robinson-Patman claim. The district court properly applied the test of "commercial identity or commercial fungibility" to determine whether compound and resin were "of like grade and quality" under the Act. See Fred Meyer, Inc. v. FTC, 359 F.2d 351, 359 (9th Cir. 1966), rev'd in part, 390 U.S. 341 (1968). The district court properly concluded that there was no genuine issue of material fact that compound and resin are not commercially fungible.

Finally, we hold that the district court did not err in failing to award appellant consequential damages for Goodrich's breach of the 1986 supply contract. Appellant was not entitled to damages flowing from Goodrich's failure to renew the 1986 contract because there was no contractual duty for Goodrich to give notice of its nonrenewal. The only damages to which appellant is entitled are those incurred during the term of the 1986 contract, which the parties agree on appeal were nominal.

Appellees' request for double costs and attorneys' fees on appeal is denied.

AFFIRMED.