Unpublished Disposition, 860 F.2d 1089 (9th Cir. 1987)
Annotate this CaseLAKE HAVASU CITY, Plaintiff-Appellant,v.RANCHO DISPOSAL SERVICE, INC.; Turco Disposal, Inc.; JoeTurner, Defendants- Appellees.
No. 87-2465.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 17, 1988.Decided Sept. 29, 1988.
Before FLETCHER and BEEZER, Circuit Judges, and JOHN C. COUGHENOUR,* District Judge.
MEMORANDUM**
Alleging that Rancho Disposal Service, Inc. (Rancho Disposal) had participated in bid-rigging on a waste disposal contract, Lake Havasu City (Lake Havasu) sued for violations of state antitrust law. The district court granted summary judgment and awarded attorneys' fees to Rancho Disposal. Lake Havasu maintains that Ariz.Rev.Stat. Sec. 34-254 does not require proof of causation of antitrust damages (or "injury-in-fact"). In the alternative, Lake Havasu argues it raised a genuine issue of material fact about Rancho Disposal's causation of damages. Lake Havasu also contends Ariz.Rev.Stat. Sec. 12-348 does not authorize attorneys' fees in this case. We affirm.
* According to Lake Havasu, ARS Sec. 34-254 waives causation of damages as an element of an antitrust violation for cases in which a government agency is the plaintiff. ARS Sec. 34-254 does not redefine the substance of an antitrust violation. ARS Sec. 34-254 merely offers a presumptive measure of damages to a government agency that has proved the traditional elements of an antitrust violation.
The statute's structure and text support this conclusion. Under the heading "Civil damages; limitation", ARS Sec. 34-254 provides:
A. Any governmental agency entering into a contract which is or was the subject of a contract, combination, conspiracy or other act prohibited by title 44, chapter 10, article 1 has a right of action against the parties to the contract, combination, conspiracy, or other act to recover damages as provided in this section....
B. At the election of the governmental agency, the agency may recover either the actual damages or ten per cent of the contract price. In addition, the agency recovers three times the amount it selects as provided in this subsection.
Id. Part A creates no substantive violation. Instead, Part A simply authorizes government agencies to sue on substantive violations set out elsewhere. Part B, the core of the statute, gives agencies the option to select a presumptive measure of civil damages.
By its terms the statute applies only to conduct "prohibited by title 44, chapter 10, article 1"--the Uniform State Antitrust Act. See ARS Sec. 44-1413. That Act prohibits agreements to restrain or monopolize trade, id. Sec. 44-1402, as well as monopolies to exclude competition or fix prices, id. Sec. 44-1403. Lake Havasu alleges Rancho Disposal committed at least one of these antitrust violations. Such antitrust violations require proof that the defendant caused antitrust damages.
The Act itself provides that courts, in interpreting the Act, "may use as a guide interpretations given by the federal courts to comparable federal antitrust statutes." ARS Sec. 44-1412. The provisions of the Act establishing antitrust violations, ARS Secs. 44-1402 and 44-1403, derive from the Sherman Act. See 7B Uniform Laws Annotated 715-717 (comments to Secs. 2 and 3). As we said in Northwest Publications, Inc. v. Crumb, 752 F.2d 473, 476 (9th Cir. 1985) (citation omitted), "Causal antitrust injury is an essential element of any remedy under the Sherman Act. It is generally sufficient to show with reasonable probability some causal connection...." Considering that our interpretation of the Sherman Act is a guide, violations set out in Arizona's Uniform State Antitrust Act require proof of causation of damages.
This conclusion is consistent with Lake Havasu's argument that the statute, located in a penal article of the Arizona Revised Statutes, amounts to a penalty on bid-rigging. Even without waiving proof of causation, ARS Sec. 34-254 amounts to a penalty; a government agency may recover ten percent of the contract price even if actual damages are less. Considering that ARS Sec. 34-254 allows for trebling of presumptive damages, the penalty is a serious one.
Even if ARS Sec. 34-254 did not include this penalty aspect, the statute still would penalize bid-rigging by facilitating antitrust enforcement. Federal law interpreting the Sherman Act recognizes the difficulty of measuring actual damages. As this court has said, under the Sherman Act " [p]roof of the amount of damages is governed by a less stringent standard of proof than is the fact of injury." Syufy Enterprises v. American Multicinema, Inc., 793 F.2d 990, 1003 (9th Cir. 1986), cert. denied, 107 S. Ct. 876. ARS Sec. 34-254 takes this approach to the logical conclusion by establishing presumptive damages as a certain alternative to the uncertain measure of actual damages.
Finally, Lake Havasu notes that the district court declined to certify the issue of interpreting ARS Sec. 34-254 to the Arizona Supreme Court. The issue is an easy one; factors counseling certification are not present. Compare Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). In declining to certify, the district court did not abuse its discretion. See id. (certification "rests in the sound discretion of the federal court").
II
Lake Havasu claims it could prove causation of damages by showing purchase from a conspirator at a supracompetitive price. Cf. Pierce v. Ramsey Winch Co., 753 F.2d 416, 435 (5th Cir. 1985). To show that the price for waste disposal was supracompetitive, Lake Havasu offered a price comparison with another city. The district court properly did not consider the price comparison in the form it was offered on the motion for summary judgment. Because no issue of fact about causation remained, the district court properly granted summary judgment in favor of Rancho Disposal. Later Lake Havasu presented the price comparison in another form, together with an expert's affidavit. The district court did not abuse its discretion in denying Lake Havasu's motion for reconsideration.
A. Summary Judgment
We review a grant of summary judgment de novo. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). When reviewing a grant of summary judgment, we consider the evidence in a light most favorable to the non-moving party--in this case, Lake Havasu. Id. at 818.
The only showing Lake Havasu made to oppose the motion for summary judgment was in the form of counsel's answer to an interrogatory. Comparing the waste disposal market in Lake Havasu with the market in Layton, Utah, this answer purported to establish that Lake Havasu had paid a supracompetitive price. The district court declined to consider this answer on the ground that it was hearsay.
The answer was hearsay, and the district court properly excluded it. See Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir. 1980) (court will not consider hearsay in reviewing summary judgment). Like anyone else, Lake Havasu's attorney had to base his statements on personal knowledge. Lockwood v. Wolf Co., 629 F.2d 603, 611 (9th Cir. 1980). His answer sketched out how in Layton, Utah the city was paying $4 per residence for refuse collection. Id. As the answer itself revealed, this information was based on interviews with Layton employees--or more precisely, on "interview notes prepared by plaintiff's counsel's staff." The answer was evidence of a statement made by someone other than Lake Havasu's attorney, and it was offered to prove the truth of the matter asserted.
Lake Havasu does not deny that the answer was hearsay. Instead Lake Havasu characterizes the district court as saying that an interrogatory answer as such is unacceptable. This would contradict the teaching of Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986), which states, "We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment." See Fed. R. Civ. P. 56(c).
Plainly, though, the district court rejected the interrogatory answer not for its form but its content. The district court cited Federal Rule of Civil Procedure 56(e). That Rule, referring to affidavits, makes clear that even though the form need not be admissible in evidence, the content must be admissible. A showing "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed. R. Civ. P. 56(e). Answers to interrogatories must meet these requirements. See S & S Logging Co. v. Barker, 366 F.2d 617, 624-25 n. 7 (9th Cir. 1966); 10A Wright, Miller, and Kane, Federal Practice and Procedure Sec. 2722 at 51-52 (1983).
Lake Havasu's answer met none of them. Not only was the reference to Layton's $4 per residence not based on personal knowledge, but the inference that $4 was the competitive price amounted to an opinion not admissible in evidence. As the attorney himself acknowledged, "I stated that the competitive price Lake Havasu City would have paid ... is approximately $4.00.... I alone determined the amount." In addition, Lake Havasu's attorney was not competent even to address issues of price comparison, which would require expert testimony. His statements did not affirmatively show he was an expert. See Bieghler v. Kleppe, 633 F.2d 531, 533 (9th Cir. 1980). On the contrary, Lake Havasu's attorney contrasted his opinion with that of an expert: " [T]he $4.00 amount was not determined by the expert."
Finally, Lake Havasu suggests that because the interrogatory answer identified witnesses who might give testimony establishing a price comparison, the answer provided evidence on damages. In support of this argument, Lake Havasu quotes at length from the dissent in Celotex. The majority in Celotex, consisting of five justices, does not indicate that naming witnesses is sufficient. The best authority Lake Havasu could appeal to would be the concurring opinion by Justice White, who was a member of the majority. But Justice White merely notes that "Celotex does not dispute that if respondent has named a witness to support her claim, summary judgment should not be granted without" rebuttal. 106 S. Ct. at 2556. Rather than endorsing this view, Justice White simply advocates remanding the case so that the appeals court can address a related question.
But even under Lake Havasu's view the district court properly granted summary judgment. Stripped of all else, the interrogatory answer names two Layton employees wholly out of context. The answer does not intimate they would be witnesses; it does not indicate their titles; it most certainly does not identify them as experts (which they were not). The answer does not name a witness who evidently could "support" the claim. The majority rule in Celotex would apply:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof.
106 S. Ct. at 2552-53. In this case, Lake Havasu fails to show that Rancho Disposal "caused" Lake Havasu any antitrust damages.
Appealing from the final judgment, Lake Havasu effectively appealed from the denial of Lake Havasu's motion for reconsideration. Munoz v. Small Business Administration, 644 F.2d 1361, 1364 (9th Cir. 1981). We review the denial of a motion for reconsideration for abuse of discretion. See Robins v. Harum, 773 F.2d 1004, 1006 (9th Cir. 1985); Fiester v. Turner, 783 F.2d 1474, 1475-76 (9th Cir. 1986). With its motion for reconsideration Lake Havasu again offered evidence of causation: affidavits on the price comparison, and an expert's affidavit giving his opinion based on a study.
To shore up the price comparison, Lake Havasu submitted affidavits of Patricia Jamison, Treasurer of Layton, and Vito Tedeschi, Management Services Director of Lake Havasu. The interrogatory answer had named Patricia Jamison months before, and Vito Tedeschi was an employee of the plaintiff. The district court was entitled to consider their affidavits late. Professor McDowell was Lake Havasu's expert. Lake Havasu submitted his affidavit piecemeal; the last installment arrived with Lake Havasu's reply memorandum in support of its motion for reconsideration--on June 18, 1987, two months after the grant of summary judgment. The district court was entitled to consider his affidavit late. The district court did not abuse its discretion in declining to consider the affidavits or, in the absence of other evidence, in denying Lake Havasu's motion for reconsideration.
III
Rancho Disposal claims that Lake Havasu's notice of appeal did not perfect an appeal from the district court's order granting attorneys' fees to Rancho Disposal. Even if this is true, a mistake in designating the judgment appealed from will not bar the appeal so long as "the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced by the mistake." United States v. One 1977 Mercedes Benz, 708 F.2d 444, 451 (9th Cir. 1983).
Shortly after filing the notice of appeal, Lake Havasu filed a docketing statement with the Clerk of the Ninth Circuit. To this statement Lake Havasu attached both the final judgment order on the merits and the order granting attorneys' fees; Lake Havasu's intent to appeal the attorneys' fees fairly may be inferred. Rancho Disposal was not prejudiced in that it had the opportunity to fully brief the attorneys' fees issue--and did in fact brief that issue. Id. We will consider Lake Havasu's appeal from the grant of attorneys' fees to Rancho Disposal.
On appeal, though, Rancho Disposal prevails. Lake Havasu contends that a specific statute on attorneys' fees in state antitrust actions, ARS Sec. 44-1408, should disable a general statute on attorneys' fees, ARS Sec. 12-348. Lake Havasu invokes the canon of construction that when a special statute conflicts with a general statute, the special statute controls. Whatever merit this canon may have, the canon cannot apply here. The attorneys' fees statutes do not conflict.
The "general" statute, ARS Sec. 12-348, provides:
A. ... a court shall award fees and other expenses to any party other than this state or a city, town or county which prevails by an adjudication on the merits in any of the following:
1. A civil action brought by the state or a city, town or county against the party.
By requiring attorneys' fees in this situation, ARS Sec. 12-348 strongly supports the policy that a citizen should not have to pay to defend himself against an unsuccessful suit by his local government. The statute expressly excludes from its scope lawsuits based on various types of subject matter, but antitrust is not one of them. Id. (G).
The "special" statute, ARS Sec. 44-1408, provides:
A. The state, a political subdivision or any public agency threatened with injury or injured in its business or property by a violation of this article may bring an action for ... damages sustained and, as determined by the court, taxable costs and reasonable attorneys' fees.
This statute simply authorizes attorneys' fees for a municipality that is a plaintiff in an antitrust suit. The statute does not by its terms deny attorneys' fees to a defendant, or even speak to the issue. Like the rest of the section in which it resides, this statute supports the policy of punishing bid-rigging. That policy does not clash with the policy of reimbursing defendants for unsuccessful suits by the government. We find no implication in ARS Sec. 44-1408 negating the requirement of attorneys' fees in ARS Sec. 12-348.
In its opening brief Rancho Disposal seeks attorneys' fees for this appeal; Rancho Disposal again invokes ARS Sec. 12-348. Section 12-348(D) (3) provides: "An award of fees ... as provided in this section shall not exceed ten thousand dollars." The district court awarded Rancho Disposal the full ten thousand dollars. Attorneys' fees on appeal are independently subject to the statutory limit. Stewart Title & Trust v. Pima County, 751 P.2d 552, 561 (Ariz.App.1987). Section 12-348(A) says "a court shall award fees" to a prevailing party; we are compelled to award Rancho Disposal attorneys' fees for this appeal. We direct counsel for Rancho Disposal to file a request pursuant to Ninth Circuit Rule 39-1.6.
IV
ARS Sec. 34-254 affords a government agency the option of presumptive damages only when the agency already has proved causation of damages. Lake Havasu failed to raise a genuine issue of material fact about Rancho Disposal's causation of antitrust damages. Arizona law requires attorneys' fees for Rancho Disposal in the district court and on appeal.
AFFIRMED.
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