Montgomery Cnty Assn v. Realty Photo Master

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MONTGOMERY COUNTY
ASSOCIATION OF REALTORS,
INCORPORATED,
Plaintiff-Appellee,
v.
REALTY PHOTO MASTER CORPORATION,
Defendant & Third Party
Plaintiff-Appellant,
v.
JOHN GILBERT; B. GEORGE BALLMAN;
DALE L. ROSS; SHANNON & LUCHS
COMPANY; WILLIAM ELLIS,
No. 95-2488
Third Party Defendants-Appellees,
and
DAVID K. HERMBECK; DELORES GICK;
MARTHA J. SCHMIDT; ROBERT L.
GRUEN; BARBARA STONE; GEORGE
MATHEOS; LISA TAYLOR; DONALD
MAY; BENNIE WALTON; RITA R.
ORCINO; HAROLD H. HUGGINS; JUDITH
DIFILIPPO; PATRICK KANE; JOANNE
ANDERSON; TOBY RHODES; PETER
RUCCI,
Third Party Defendants.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-90-2141-L)
Argued: June 6, 1996
Decided: July 24, 1996
Before ERVIN, NIEMEYER, and HAMILTON, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: David Huntington Williams, Bethesda, Maryland, for
Appellant. Gregory Lee VanGeison, ANDERSON, COE & KING,
Baltimore, Maryland, for Appellees. ON BRIEF: James A. Roth-
schild, ANDERSON, COE & KING, Baltimore, Maryland, for
Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Realty Photo Master Corporation (RPM) appeals the district court's
entry of summary judgment in favor of the Montgomery County
Association of Realtors (MCAR) and Shannon and Luchs Co. on
RPM's claims that MCAR and Shannon and Luchs violated section
1 of the Sherman Act, 15 U.S.C. § 1, and a Maryland antitrust statute,
Md. Code Ann., Com. Law II § 11-204(a). We affirm on the reason-
ing of the district court.
I.
MCAR, an association of realtors, produces the "multiple listing
service" (MLS), a directory of the real estate listed for sale in the
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Montgomery County, Maryland, area. MCAR provides the MLS to its
members for a fee. Before 1988, MCAR distributed the MLS in soft-
bound books. The MLS books contained a description of each listing,
including such information as its address, square footage, and asking
price. The MLS books also contained a photograph of each listing.
In 1978, MCAR began providing a computerized version of the
MLS, in addition to the MLS books. The computerized MLS is trans-
mitted over telephone lines to MCAR's members, who access the ser-
vice through personal computers. Initially, the computerized MLS
contained all the information about listings that the MLS books con-
tained, with one important exception--the computerized MLS did not
contain photographs of the listings. In 1988, MCAR stopped printing
the MLS books because of decreased demand for them. MCAR also
began studying ways to include photographs of listings in the comput-
erized MLS.
In 1988, RPM began selling computerized photographs of listings
to MCAR members. RPM obtained a code to access the computerized
MLS from an MCAR member. Using the access code, it obtained the
addresses of new listings as they were added to the computerized
MLS. RPM then photographed the listings, digitized the photographs,
and downloaded the photographs into its customers' personal comput-
ers. RPM also provided its customers with software to integrate the
photographs of listings with the descriptions of listings found in the
computerized MLS.
When MCAR discovered RPM's activities, it demanded that RPM
cease accessing the MLS. Additionally, Shannon and Luch's, a realty
firm that is a member of MCAR, filed a complaint with MCAR,
charging that a competing agent had violated MCAR's code of ethics
by distributing a flyer with a photograph of a Shannon and Luchs list-
ing. The photograph had been provided by RPM.
MCAR and RPM attempted to negotiate terms under which RPM
would be allowed access to the MLS, but were unable to reach an
agreement. When the negotiations failed, MCAR sued RPM for copy-
right infringement, unfair competition, unauthorized wiretapping,
misappropriation of trade secrets, and breach of contract. RPM
brought counterclaims against MCAR and claims against Shannon
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and Luchs and other members and officers of MCAR, asserting, inter
alia, that they conspired to restrain trade in violation of section 1 of
the Sherman Act, 15 U.S.C. § 1, and Md. Code Ann., Com. Law II
§ 11-204(a). Specifically, RPM argued that it was the victim of a con-
certed refusal to deal, of a denial of access to an essential facility, and
of an illegal tying arrangement.
In 1991, while this case was pending, MCAR announced that it had
contracted with Opticom Corporation to photograph listings and inte-
grate the photographs into the computerized MLS. RPM sought a pre-
liminary injunction to prohibit MCAR from including the
photographs in the computerized MLS. The district court denied the
preliminary injunction, and this court affirmed. See Montgomery
County Ass'n of Realtors, Inc. v. Realty Photo Master Corp., 783 F.
Supp. 952 (D. Md. 1992), aff'd, No. 92-1300, 1993 WL 169046 (4th
Cir. May 20, 1993) (unpublished), cert. denied , 114 S. Ct. 440 (1993).
Thereafter, the parties moved for summary judgment. The district
court granted summary judgment in favor of MCAR and Shannon and
Luchs on RPM's claims under the Sherman Act and the Maryland
antitrust statute. But the district court granted RPM's motions for
summary judgment on MCAR's wiretapping and misappropriation of
trade secrets claims. Finally, the district court denied MCAR's
motions for summary judgment on its remaining claims against RPM.
In a later order, the district court directed the entry of final judg-
ment in favor of MCAR and Shannon and Luchs on RPM's claims
under the Sherman Act and the Maryland antitrust statute. See Fed.
R. Civ. P. 54(b).1 RPM then filed this appeal.
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1 The district court determined that there was no just reason to delay
entering final judgment because MCAR has stated that it will abandon
its remaining claims against RPM if the judgment against RPM on the
antitrust claims is affirmed. See Fed. R. Civ. P. 54(b) ("[T]he court may
direct the entry of a final judgment as to one or more but fewer than all
of the claims . . . only upon an express determination that there is no just
reason for delay and upon an express direction for the entry of judg-
ment.").
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II.
The district court must grant a motion for summary judgment when
the nonmoving party fails to demonstrate that a genuine issue exists
regarding a material fact. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986); Fed. R. Civ. P. 56(c). The
nonmoving party cannot create a genuine issue of material fact by
mere speculation or by building one inference upon another. Beale v.
Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Instead, there must be evi-
dence such that a reasonable jury could return a verdict for the non-
moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248
(1986). We review the entry of summary judgment de novo. See
Cooke v. Manufactured Homes, Inc., 998 F.2d 1256, 1260 (4th Cir.
1993).
After conducting a de novo review of the record and considering
the briefs and arguments of the parties, we have determined that no
genuine issue of material fact exists and that this appeal is without
merit. Therefore, we affirm the district court's entry of summary
judgment in favor of MCAR and Shannon and Luchs for the reasons
stated in the district court's opinion. See Montgomery County Ass'n
of Realtors, Inc. v. Realty Photo Master Corp., 878 F. Supp. 804 (D.
Md. 1995).2
AFFIRMED
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2 Although the district court did not address the tying claim in this
opinion, it did address the tying claim in its earlier order denying the pre-
liminary injunction. We affirm the entry of summary judgment on this
claim for the reasons stated in that order. See Montgomery County Ass'n
of Realtors, Inc. v. Realty Photo Master Corp., 783 F. Supp. 952 (D. Md.
1992).
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