Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)

HOVAIR SYSTEMS, INC., Plaintiff-Appellant,v.AERO-GO, INC., Defendant-Appellee

No. 90-35502.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1991.* Decided June 12, 1991.

Before EUGENE A. WRIGHT, FARRIS and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Hovair Systems, Inc. appeals the district court's dismissal of its antitrust action against Aero-Go, Inc. Hovair alleges that Aero-Go engaged in predatory pricing in violation of 15 U.S.C. § 2. The district court found that the market conditions necessary for successful predation did not exist and entered summary judgment. We reverse.

Evidence in the record must be evaluated most favorably to the nonmoving party to determine whether any genuine issues of material fact remain. Thurman Indus., Inc. v. Pay 'n Pak Stores, Inc., 875 F.2d 1369, 1373 (9th Cir. 1989).

In entering summary judgment, the district court defined the relevant market to be the world-wide market for heavy materials handling in industrial settings. Hovair argues that the district court erred in rejecting its evidence that the relevant market should be more narrowly defined to be the submarket for custom built air-bearing systems in the United States aerospace industry. Definition of the relevant market is a factual inquiry usually reserved for the jury; the court may not weigh the evidence or judge witness credibility. Id. at 1374.

We have made an independent review of the record. We are satisfied that evidence in the record raises genuine issues of material fact regarding market definition. Triable issues of fact exist as to each of the indicia used to identify an economically significant submarket. See id. at 1375 (noting the factors set forth in Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962)). Hovair has presented evidence which suggests that, because of the particular needs of the aerospace applications market, non-air-bearing systems are not presently a viable means for handling aerospace materials. Though Aero-Go may be unable to achieve monopoly power in the general market for the handling of heavy industrial materials, there are genuine issues as to whether the company may be in a position to control the market for the handling of heavy materials in the United States aerospace industry. If anticompetitive effects are possible in the market for the customized air-bearing systems used in the aerospace industry, the submarket must be isolated for antitrust purposes.

REVERSED and REMANDED.

 *

The panel unanimously finds this case suitable for submission without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3