Unpublished Disposition, 902 F.2d 40 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1990)

PACIFIC CREATIVE ADVERTISING, Plaintiff-Appellant,v.SOUTHWESTERN BELL CORPORATION, Southwestern BellPublications, Inc., Blake Publishing, Inc.,Defendants-Appellees.

Nos. 89-35096, 89-35205.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 1990.Decided May 1, 1990.As Amended July 13, 1990.

Before BROWNING, ALARCON AND RYMER, Circuit Judges.


MEMORANDUM* 

Pacific Creative Advertising (Pacific) appeals the summary judgment granted Southwestern Bell (Southwestern) on Pacific's copyright infringement and antitrust violation claims. Southwestern cross-appeals the district court's denial of Rule 11 sanctions against Pacific and asks for attorneys' fees on appeal. We affirm.

We review a grant of summary judgment de novo, viewing the evidence in the light most favorable to Pacific. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989). To survive a summary judgment motion, Pacific must set forth "significant probative evidence tending to support the complaint." Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986) (internal quotation omitted).

* It is undisputed Pacific distributed some of its 1984 maps without a valid copyright notice. Pacific contends it cured the omission pursuant to 17 U.S.C. § 405(a).1 

Pacific claims it satisfied Sec. 405(a) (1) by showing the notice was omitted from only a "relatively" small number of maps. Pacific failed, however, to show the total number of maps distributed to the public. Thus, Pacific did not meet its burden of showing only a relatively small number of the maps distributed were distributed without notice. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Cooling Sys. & Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 489-90 (9th Cir. 1985).

Pacific claims it satisfied Sec. 405(a) (2) by showing it made a reasonable effort to add notice to copies of the map distributed after it discovered the omission. Pacific stamped all copies under its control, but failed to contact any of its distributors, including the Bremerton Chamber of Commerce, to which it had distributed at least 300 copies.2  See Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426, 1433-34 (9th Cir. 1986). Pacific claims it did not do so because Nelson "felt it would be a waste of effort to attempt to stamp those maps already distributed as well as impossible."

Reasonableness of effort is generally a factual question, see Lloyd v. Schlag, 884 F.2d 409, 415 (9th Cir. 1989), but no effort at all may be unreasonable as a matter of law, see Shapiro & Son Bedspread Corp. v. Royal Mills Assocs., 764 F.2d 69, 73 (2d Cir. 1985); Canfield v. Ponchatoula Times, 759 F.2d 493, 499 (5th Cir. 1985). Although the record indicates Pacific added notice to all maps within its control, there is no evidence of any attempt to add notice to the maps distributed to the chambers of commerce or to advertisers. The only evidence that this failure was reasonable is Nelson's self-serving assertion that attempting to add notice would be a waste of time. A reasonable jury could not return a verdict for Pacific on the basis of this evidence.

Summary judgment was properly granted on the copyright infringement claim.

II

Pacific next claims the exclusive dealing provisions in the contracts between Southwestern and the chambers of commerce violated Sec. 1 of the Sherman Act. Summary judgment is not generally favored in antitrust litigation, but is appropriate when the non-moving party fails to show any issues of material fact or to present a record adequate to support a finding in its favor. Christofferson Dairy, Inc. v. MMM Sales, Inc., 849 F.2d 1168, 1171 (9th Cir. 1988).

Pacific concedes whether the contracts unreasonably restrained trade is to be judged under the rule of reason. See, e.g., Cascade Cabinet Co. v. Western Cabinet & Millwork, Inc., 710 F.2d 1366, 1371 (9th Cir. 1983). Under this rule, Pacific must show the agreements injured competition, not just Pacific's own business. Christofferson, 849 F.2d at 1172. Instead of presenting evidence on this issue, Pacific relies on the mere existence of the contracts and conclusory statements by Nelson that the contracts injured competition. The exclusive dealing contracts themselves do not establish an antitrust violation, Rickards v. Canine Eye Registration Found., 704 F.2d 1449, 1454 (9th Cir. 1983), and Pacific cannot create an issue of material fact solely through conclusory statements in an affidavit, see Angel v. Seattle-First Nat'l Bank, 653 F.2d 1293, 1299 (9th Cir. 1981). Pacific is unable to point to any other evidence in the record to support its claim.

Pacific also contends Southwestern violated Sec. 2 of the Sherman Act because (1) the contracts between Southwestern and the chambers of commerce resulted in monopoly power, and (2) Southwestern attempted to monopolize the market. The elements of Pacific's first claim under Sec. 2 are monopoly power, the willful acquisition or maintenance of that power, and causal antitrust injury. Christofferson, 849 F.2d at 1174. The test of willful acquisition or maintenance of monopoly power is whether the acts complained of unreasonably restricted competition. Drinkwine v. Federated Publications, Inc., 780 F.2d 735, 739 (9th Cir. 1985). As discussed above, Pacific has failed to come forward with evidence showing competition was unreasonably restricted.

To establish a claim for attempted monopolization, Pacific must show (1) Southwestern specifically intended to monopolize the market, (2) Southwestern committed acts designed to achieve the illegal objective, and (3) there was a dangerous probability Southwestern would succeed. Christofferson, 849 F.2d at 1174. Pacific again relies on the mere existence of the contract and the injury to Pacific's business, supported by Nelson's conclusory statements. This evidence does not indicate, directly or inferentially, that Southwestern intended to monopolize the market.

Summary judgment was properly granted on the antitrust claims.

III

The district court properly denied Southwestern's requests for sanctions. Pacific's copyright claim was not frivolous, as Southwestern admits, and there is no showing Pacific's attorneys acted in bad faith. Sanctions for a frivolous claim are not available under Rule 11 unless the entire pleading is frivolous, see Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1540-41 (9th Cir. 1986), and they are not available under 28 U.S.C. § 1927 in the absence of recklessness or bad faith, see Estate of Blas v. Winkler, 792 F.2d 858, 860 (9th Cir. 1986). Southwestern's request for attorney's fees on appeal is also denied.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Section 405(a) provides in pertinent part:

(a) Effect of Omission on Copyright.--The omission of the copyright notice prescribed by sections 401 through 403 from copies ... publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if--

(1) the notice has been omitted from no more than a relatively small number of copies ... distributed to the public; or

(2) registration for the work ... is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies ... that are distributed to the public ... after the omission has been discovered.

Section 405, effective during the events covered by this lawsuit, was amended as of March 1, 1989 to conform with the Berne Convention. Lloyd v. Schlag, 884 F.2d 409, 411 n. 2 (9th Cir. 1989).

 2

In his affidavit, Nelson states he distributed maps to the chamber of commerce and two advertisers. In his deposition, however, he states he gave each advertiser "from a dozen to probably 100, 125" maps and various chambers of commerce "100 to 200."