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Berardinelli v. Castle Cooke Inc.

United States Court of Appeals, Ninth Circuit
Nov 30, 1978
587 F.2d 37 (9th Cir. 1978)

Summary

finding that dismissal was proper where plaintiff did not avail himself of the opportunity to conduct jurisdictional discovery during the seventh months between the filing of the complaint and the grant of the motion to dismiss

Summary of this case from RHKids, Llc. v. Castle & Cooke Mortg. Servs., LLC

Opinion

No. 76-3640.

November 30, 1978.

John R. Murtha, of Eckhoff, Hoppe, Slick, Mitchell Anderson, San Francisco, Cal., for plaintiff-appellant.

Louis E. Wolcher, of Pettit, Evers Martin, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING and KENNEDY, Circuit Judges, and DUMBAULD, District Judge.

Honorable Edward Dumbauld, Senior United States District Judge for the Western District of Pennsylvania, sitting by designation.


Appellant appeals from an order dismissing his antitrust action for lack of subject matter jurisdiction.

Appellant's complaint alleged an attempt to monopolize the business of reselling lots in the unincorporated community on the northern California coast known as "The Sea Ranch," in violation of section 2 of the Sherman Act, 15 U.S.C. § 2 (1970). According to the complaint, appellant opened a real estate firm in 1973 and began providing services to owners of Sea Ranch lots who wished to resell them. Appellees were also actively engaged in the business of providing brokerage services to such persons through the Sea Ranch Sales Company. Appellant alleges that in furtherance of a conspiracy and combination to monopolize, appellees sought to prevent property owners at the Sea Ranch from dealing with him.

Appellees moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), Fed.R.Civ.P. On the basis of the pleadings, supplemental briefs on the jurisdictional issue, affidavits, and other materials submitted by the parties, and after an oral hearing, the trial court granted the motion on the ground that the business activities involved were "not within the flow of interstate commerce but . . . rather wholly intrastate in character [and these] intrastate activities [did] not substantially affect interstate commerce." (C.T. 140.) Appellant petitioned for reconsideration claiming for the first time that the trial court had "improperly decided a factual issue which should have been reserved for a jury and thereby deprived [him] of his right to a jury trial." (C.T. 128.)

Appellant does not challenge the substantive correctness of the trial court's decision that the court lacked subject matter jurisdiction under the Sherman Act. We therefore do not consider that question. Appellant's claim is procedural; he argues that the issue of whether the commercial activities involved had sufficient nexus with interstate commerce to establish subject matter jurisdiction under the Sherman Act should have been submitted to a jury.

"The jurisdictional issue under the Sherman Act is distinct from the substantive issue of whether a given defendant's conduct was of the kind prohibited by the Act," Gough v. Rossmoor Corp., 487 F.2d 373, 375 (9th Cir. 1973). Specifically, "the jurisdictional question . . . is whether defendants' conduct had a sufficient relationship to interstate commerce to be subject to regulation by Congress . . . [while] the substantive issue . . . is whether defendants participated in anti-competitive conduct of the kind encompassed within the statutory terms `restraint of trade,' `monopolize,' or `attempt to monopolize.'" Id. at 376.

A party is entitled to have the jurisdictional issue submitted to a jury only where the jurisdictional issue and the issue on the merits are factually so "completely intermeshed," McBeath v. Inter-American Citizens for Decency Committee, 374 F.2d 359, 362-63 (5th Cir. 1967), that "the question of jurisdiction is dependent on decision of the merits," Land v. Dollar, 330 U.S. 731, 735, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947). See Gough v. Rossmoor Corp., supra, 487 F.2d at 377; 5 Moore's Federal Practice ¶ 38.36[1] at 294 (2d Ed. 1977). 5 Wright Miller Federal Practice Procedure § 1350 at 558 (1969). In this case appellant concedes that "the jurisdictional issue depends on facts that are separate and distinct from the facts which make up the alleged anticompetitive practices." (Reply brief at 7.) It was proper, therefore, for the trial court to make any necessary factual findings and decide the jurisdictional issue pursuant to a motion under Rule 12(b)(1). See Gough v. Rossmoor, supra, 487 F.2d at 377; Rosemound Sand Gravel Co. v. Lambert Sand Gravel Co., 469 F.2d 416, 418 (5th Cir. 1972); 6 Moore's, supra, ¶ 56.03 at 56-61; 10 Wright Miller, supra, § 2713 at 405. See also Page v. Work, 290 F.2d 323, 334 (9th Cir. 1961); 5 Moore's, supra, ¶ 38.36[2.2] at 299-300. In deciding the Rule 12(b)(1) motion, the trial court may rely on affidavits and other evidence submitted in connection with the motion, as the court did in this case. See Land v. Dollar, supra, 330 U.S. at 735 n. 4, 67 S.Ct. 1009; Exchange National Bank v. Touche Ross Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976); 5 Wright Miller, supra, § 1350 at 549-50; 9 Wright Miller, supra, § 2416 at 376-77. Cf. Timberlane Lumber Co. v. Bank of America, 549 F.2d 597, 602 (9th Cir. 1976).

Appellant also asserts the district court did not afford him an opportunity to develop evidentiary matters relevant to the jurisdictional question through discovery. Appellant had ample opportunity for discovery on the jurisdictional issue but chose not to avail himself of it. Five months elapsed between the filing of appellant's complaint and the filing of appellees' motion to dismiss; an additional two months passed between the filing of appellees' motion and the hearing. Appellant made no effort to undertake discovery during this seven month period.

AFFIRMED.


Summaries of

Berardinelli v. Castle Cooke Inc.

United States Court of Appeals, Ninth Circuit
Nov 30, 1978
587 F.2d 37 (9th Cir. 1978)

finding that dismissal was proper where plaintiff did not avail himself of the opportunity to conduct jurisdictional discovery during the seventh months between the filing of the complaint and the grant of the motion to dismiss

Summary of this case from RHKids, Llc. v. Castle & Cooke Mortg. Servs., LLC

affirming jurisdiction dismissal of antitrust action for failure to show dealing in interstate commerce where plaintiff conceded that jurisdiction and substantive facts were "separate and distinct"

Summary of this case from Roberts v. Corrothers

rejecting similar argument in part because plaintiff made no effort to undertake any discovery during period between filing of complaint and filing of motion to dismiss

Summary of this case from St. Clair v. City of Chico

directing district courts to "make factual findings" necessary to inquiries into jurisdiction and explaining that the factual determinations necessary to resolve a statute of limitations claim are different from those necessary to resolve the substantive claim

Summary of this case from Skranak v. Castenada

following Gough

Summary of this case from Wells Real Estate v. Greater Lowell Bd.

In Berardinelli we held that the trial court could properly resolve factual disputes related to the interstate commerce issue in ruling on a Rule 12(b)(1) speaking motion to dismiss for lack of subject matter jurisdiction.

Summary of this case from Thornhill Pub. v. General Telephone Elec

In Berardinelli, supra, 587 F.2d at 39, we distinguished McBeath, relying on plaintiff's concession that the jurisdictional and substantive issues were not intertwined. Yet if the interstate commerce issue were to be viewed as a substantive element of the offense, the jurisdictional issue would necessarily be tied to the merits of the case.

Summary of this case from Thornhill Pub. v. General Telephone Elec

In Berardinelli, the district court dismissed an antitrust action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

Summary of this case from Careau Group v. United Farm Workers of America, Afl-Cio
Case details for

Berardinelli v. Castle Cooke Inc.

Case Details

Full title:DOMINICK BERARDINELLI D/B/A DON BERARD ASSOCIATES, PLAINTIFF-APPELLANT, v…

Court:United States Court of Appeals, Ninth Circuit

Date published: Nov 30, 1978

Citations

587 F.2d 37 (9th Cir. 1978)

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