Kinnett Dairies, Inc. v. Dairymen, Inc.

PER CURIAM:

The facts of this case are reported in detail in the excellent district court opinion of Judge Bootle. Kinnett Dairies, Inc. v. Dairymen, Inc., 512 F.Supp. 608 (M.D.Ga. 1981). We affirm that opinion. Appellant Kinnett Dairies raises on appeal only two arguments worthy of discussion. Both arguments are based on United States v. Dairymen, Inc., 660 F.2d 192 (6th Cir.1981), which involved the same defendant present in this case and similar contentions of antitrust violations. In that case the Court of Appeals for the Sixth Circuit reversed the district court on two grounds, both of which Kinnett urges as grounds for reversal here.

The Sixth Circuit’s first ground for reversal was that the district court used an overly stringent test of predation to evaluate the conduct of Dairymen, Inc. (D.I.). The court rejected this test, and remanded the case to the district court to determine whether D.I. possessed an intent to smother competition. Kinnett argues that the district court in this case also used an overly stringent test of predation and did not focus on Dairymen’s intent. To the contrary, the district court specifically held that D.I. had “no conscious intent to stifle or smother competition .... ” Id. at 643. Moreover, the district court throughout its opinion used the term “predatory” in its broadest sense. E.g., 512 F.Supp. at 633- (certain activities “not predatory in any sense of the word”). Thus, Kinnett’s reliance on United States v. Dairymen, Inc., in support of its first ground for reversal is misplaced.

The Sixth Circuit remanded also for the district court to determine “relevant geographic submarkets on the basis of commercially significant areas in which D.I. operated and in which D.I.’s customers could turn to other suppliers.” This is the test set forth in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 628, 5 L.Ed.2d 580 (1961), which case the Sixth Circuit cited. 660 F.2d at 192. Kinnett argues that we should remand in this case because as in the Sixth Circuit case, the district court failed to consider relevant submarkets. It is true that the district court rejected Kinnett’s proposed submarkets, and that as an additional reason for such rejection quoted from now-reversed language of the district court in United States v. Dairymen, Inc. However, the court’s major and independent reason for rejecting Kinnett’s submarket arguments was the failure of the proposed sub-markets to coincide even closely with those resulting from the court’s application of the Tampa Electric test, the very test the Sixth Circuit ordered the district court in that case to apply. The district court in this case having applied the Tampa Electric test, it would of course serve no purpose to remand for application of that test. Thus, we reject Kinnett’s second argument.

Finding no merit in any of Kinnett’s arguments on appeal, we affirm.

AFFIRMED.