Lieberthal v. North Country Lanes, Inc., 332 F.2d 269 (2d Cir. 1964) .18, 21, 26, 27, 28, 32 Marks Food Corp. v. Barbara Ann Baking Co., 162 F. Supp. 300 (S.D. Cal. 1958), rev’d on other grounds, 274 F.2d 934 (9th Cir. 1960) 27 Marston V. Ann Arbor Property Man. Ass'n., 302 F. Supp. 1276, (E.D. Mich. 1969), aff'd per curiam, 422 F.2d 836 (6th Cir. 1970), cert. denied, 399 U.S. 929 (1970) 15 McNellow v. John B. Kelly, Inc., 283 F.2d 96 (3d Cir. 1960) 10 McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936) ..... ....11, 12 Michigan Bar Review Center, Inc. v. Nexus Corp., 1972 Trade Cas. || 73,891 (N.D. Ill. Feb. 17, 1972) 15 Morgan v. Melchar, 442 F.2d 1082 (3rd Cir. 1971) .... 13 O'Hare Int'l Bank v. Hampton, 437 F.2d 1173 (7th Cir. 1971) New Century Casualty Co. v. Chase, 39 F. Supp. 768 (S.D. W.Va. 1941) 10 Page v. Work, 290 F.2d 323 (9th Cir. 1961), cert. denied, 368 U.S. 875 (1961) .18, 26, 27, 31 Pintozzi v. Scott, 436 F.2d 375 (7th Cir. 1970) 12 Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co., 1971 Trade Cas. | 73,688 (E.D. La. 1971) 15, 19, 21, 32 Seagram-Distillers Corp v. New Cut Rate Liquors, 245 F.2d 453 (7th Cir. 1957), cert. denied, 355 U.S. 837 (1957) .11, 32 Seslar v. Union Local 901, Inc., 186 F.2d 403 (7th Cir. 1951), cert. denied, 341 U.S. 940 (1951) 11, 12 25 PAGE Sun Valley Disposal Co. v. Silver State Disposal Co., 1970 Trade Cas. || 73,028 (D.Nev. 1968), aff'd, 420 F.2d 341 (9th Cir. 1969) .. 12, 14, 16, 21, 25, 26, 27, 28 Thoresen v. Roth, 351 F.2d 573 (7th Cir. 1965) 30 Topp-Cola Co. v. Coca-Cola Co., 185 F. Supp. 700 (S.D.N.Y. 1960) 13 United States v. Frankfort Distillers, 324 U.S. 293 (1945) 26 United States v. Oregon Med. Soc., 343 U.S. 326 (1952) 18 United States v. Pennsylvania Refuse Removal Ass'n, 357 F.2d 806 (3d Cir. 1966), cert. denied, 384 U.S. 391 (1966) 17 United States v. Yellow Cab Co., 332 U.S. 218 (1947) 34 Williams v. Minnesota Mining & Mfg. Co., 14 F.R.D. 1 (S.D.Cal. 1953) .. 12 Yellow Cab Co. v. Teamsters Local 881, 1972 Trade Cas. || 73,877 (9th Cir. Mar. 1, 1972) .15, 18, 29, 32 STATUTES AND RULES: 2 Sherman Act Section 1, 2, 15 U.S.C. $$1, 2 ... Section 4, 15 U.S.C. $ 15 ... 23 ....7, 12, 30 .13,30 OTHER AUTHORITIES: $ 1240 (1958) ... 12 12
IN THE United States Court of Appeals FOR THE SEVENTH CIRCUIT No. 72-1303 A. CHERNEY DISPOSAL CO. and Plaintiffs-Appellants, Appeal from the CHICAGO & SUBURBAN REFUSE Defendants-Appellees. The Honorable District Judge. BRIEF OF APPELLEES ISSUE PRESENTED FOR REVIEW The only issue presented for review on this appeal is : Whether, based upon the record in this case—the plead- Plaintiffs' “Issues Presented for Review” is written as if COUNTERSTATEMENT OF THE CASE 2 Plaintiffs' entire brief is premised on their original erroneous contention that “The [district] judge assumed plaintiffs' allegations to be true, but ruled that they were insufficient to support federal jurisdiction under sections 1 and 2 of the Sherman Act” (P. Br. 2-3).” This contention has no basis in fact or law and the district court's opinion repeatedly makes it clear that the court did not accept plaintiffs’ allegations as true. The court stated at the outset of its opinion that “there is no bar to the consideration by the court of matters beyond the pleadings when they are presented with a motion to dismiss for lack of jurisdiction ...” (App. 269) and, in its holding summarizing the conclusion it reached, the district court stated that: “Upon the facts before this court, the pleadings, affidavits, and briefs, this court finds that it has no jurisdiction under the Sherman Act to hear this case. There a 1 The district court's opinion has not yet been published in the Federal Supplement. It does appear in 1972 Trade Cas. | 73,958 and at pages 265-75 of the 275 page Appendix filed herein. Our citations to the district court's opinion will be to this Appendix, which also contains pertinent parts of the record before the district court and is cited herein as “App. 2 Brief of Appellants filed on May 26, 1972 is cited herein as “P. Br. has been no showing in the complaint and affidavits filed in response to defendants' motion that this court has jurisdiction pursuant to the Sherman Act” (App. 271). was Further, in considering defendants' various arguments the court repeatedly referred to the fact that "[t]aking into consideration the affidavits and depositions filed in this matter ...” (App. 274-75; see also App. 273). There is simply no basis for plaintiffs' completely erroneous claim that their complaint allegations were accepted as true or for their attempt to virtually ignore the record on which the district court's decision was based. This counterstatement is necessary to correct those errors and inform this Court of the actual record. A. The Proceedings In the District Court. Plaintiffs' complaint, alleging violations of the antitrust laws, was filed on May 4, 1970 (App. 9-39). Defendants filed answers denying all the substantive allegations of the complaint (App. 40-104) and immediately upon filing these answers defendants commenced taking discovery from the three Flood brothers, the sole officers and owners of the plaintiffs. Defendants first deposed Joseph Flood, president of both plaintiffs, and this deposition continued over a period of six months before it was completed. Defendants then commenced the deposition of William Flood, vice-president of both plaintiffs, which was not completed but had gone on for five weeks at the time defendants filed their motion for summary judgment. During these depositions plaintiffs were repeatedly asked for instances of how the conduct of which they complained had any effect on, or was involved 3 Emphasis has been supplied throughout this brief unless otherwise noted. |