United States District Court, D. Oregon, Medford Division
OPINION AND ORDER
MICHAEL MCSHANE U.S. DISTRICT JUDGE
Plaintiffs Jeff Boardman, Dennis
Rankin, Lloyd D. Whaley, and MV Fisheries, Inc. bring this
antitrust action against Defendants Pacific Seafood Group
(Pacific Seafood) and more than 50 other businesses owned in
whole or part by Defendants Frank Dulcich and Dulcich, Inc.
Plaintiffs, who are commercial fishermen, seek a permanent
injunction prohibiting Pacific Seafood from acquiring any
additional ownership interest in Ocean Gold Seafoods and its
affiliates, including Ocean Protein, LLC and Hoquiam
Riverview Properties, LLC (Ocean Gold). Pacific Seafood
currently owns about a third of Ocean Gold. Mot. Intervene 1,
ECF No. 220. Francis Miller, Sherry Miller, Jacquelyn Rydman,
and Mark Rydman, who collectively own about 48% of Ocean
Gold, have intervened as Defendants.
Seafood moves for summary judgment, contending that
Plaintiffs have not shown antitrust standing to bring this
action because they do not participate in the relevant
markets. Plaintiffs respond that they have antitrust
standing, and alternatively that Pacific Seafood's motion
for summary judgment should be stayed to allow additional
the Plaintiffs do not participate in the relevant markets,
Plaintiffs lack antitrust standing. Pacific Seafood's
motion for summary judgment is GRANTED. Plaintiffs'
request for further discovery is denied.
filed this action in January 2015 after Pacific Seafood
notified Plaintiffs' counsel of the proposed acquisition
of Ocean Gold. The settlement agreement in a prior action,
Whaley v. Pacific Seafood Group, No. 10-cv-3057-MC,
required that Pacific Seafood notify Plaintiff's counsel
about any proposed acquisition of Ocean Gold. See
Pls.' Mem. Opp'n 13 n.6, ECF No. 211.
bring claims against Pacific Seafood for monopolization and
attempted monopolization in violation of the Sherman Act, 15
U.S.C. § 2, and for unlawful merger in violation of the
Clayton Act, 15 U.S.C. § 18. Plaintiffs seek only
injunctive relief, not damages.
assert that Pacific Seafood's proposed acquisition of
Ocean Gold would cause a “substantial lessening of
competition and the enhancement of an existing monopoly held
by Pacific Seafood Group in the West Coast seafood input
markets for trawl-caught groundfish, Pacific onshore whiting
and Pacific coldwater shrimp.” Second Am. Compl. ¶
63, ECF No. 52. Plaintiffs claim that “[t]his resulting
increased concentration in these West Coast seafood input
markets will result in ex vessel price suppression to the
detriment of plaintiffs.” Id.
after filing their complaint, Plaintiffs moved for a
preliminary injunction prohibiting Pacific Seafood from
acquiring full ownership of Ocean Gold. Pls.' Mot.
Prelim. Inj., ECF No. 22. In March 2015, this court granted
Plaintiffs' motion for a preliminary injunction.
Boardman v. Pacific Seafood Group, 2015 WL 13357739
(D. Or. Mar. 6, 2015), ECF No. 55.
Seafood moved to compel arbitration, based on the terms of
the settlement agreement in Whaley. Defs.' Mot.
Compel Arbitration, ECF No. 71. In June 2015, this court
denied Pacific Seafood's motion to compel arbitration.
Boardman v. Pacific Seafood Group, 2015 WL 13358335
(D. Or. June 8, 2015), ECF No. 83. In August 2015, this court
granted Pacific Seafood's motion to stay proceedings
pending its appeal of this court's rulings. Order, ECF
No. 103. On appeal, the Ninth Circuit affirmed. Boardman
v. Pacific Seafood Group, 822 F.3d 1011 (9th Cir. 2016).
The preliminary injunction remains in place.
remand from the Ninth Circuit, the parties resumed discovery,
which has been ongoing since the fall of 2016. Plaintiffs
served Dr. Radtke's expert report on June 30, 2017.
Seafood deposed Dr. Radtke on October 25, 2017. Pacific
Seafood filed the current motion for summary judgment on
December 5, 2017. On December 19, 2017, Plaintiffs moved to
replace Dr. Radtke after he stated that he was no longer able
to testify due to his age and concerns about his ability to
testify at trial. Pls.' Mot. Substitute Testifying Expert
Witness, ECF No. 196. I granted Plaintiffs' motion to
substitute, and Plaintiffs named Dr. Richard Sexton, a
professor of agricultural and resource economics at
University of California, Davis, to replace Dr. Radtke as an
expert witness. See Sexton Decl. 3, ECF No. 212.
PLAINTIFFS' REQUEST FOR A STAY
TO ALLOW ADDITIONAL DISCOVERY
Plaintiffs' Request for a Stay
their response to Pacific Seafood's motion for summary
judgment, Plaintiffs seek a stay for additional discovery
based on Federal Rule of Civil Procedure 56(d). Pls.'
Mem. Opp'n 22, ECF No. 211. Rule 56(d) allows this court
to defer ruling on a pending motion for summary judgment
“[i]f a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts
essential to justify its opposition.”
contend that they need additional discovery to respond to
Pacific Seafood's motion for summary judgment. For
example, they seek “documents and depositions necessary
to assess the relative market shares of Pacific Seafood and
Ocean Gold in Westport.” Pls.' Mem. Opp'n 15.
Plaintiffs state that although Dr. Radtke defined the
relevant geographic markets based on his finding that
commercial fishermen were willing to travel from 60 to 100
miles to sell their catch, Plaintiffs learned that Plaintiff
Dennis Rankin has traveled more than 100 miles from the point
of harvest to deliver his catch. Pls.' Mem. Opp'n 21.
also contend that their substitute expert witness, Dr.
Sexton, should be given time to formulate his own market
definitions, arguing that Dr. Sexton “has not had a
reasonable opportunity to review the evidence or form his own
opinions on relevant subjects, ” including geographic
markets. Pls.' Mem. Opp'n 20. Dr. Sexton states that
“insufficient analysis has been conducted to render a
definitive opinion on the correct geographic market or
markets for the acquisition of Pacific whiting, Pacific
coldwater pink shrimp, and trawl-caught groundfish.”
Sexton Decl. ¶ 9.
Legal Standards for a Stay of Summary Judgment
(d) When Facts Are Unavailable to the
Nonmovant. If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or
declarations or to take discovery; or
(3) issue any other appropriate order.
Rule 56(d) “provides a device for litigants to avoid
summary judgment when they have not had sufficient time to
develop affirmative evidence.” United States v.
Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir.
2002). To justify a stay, the requesting party must establish
that “(1) it has set forth in affidavit form the
specific facts it hopes to elicit from further discovery; (2)
the facts sought exist; and (3) the sought-after facts are
essential to oppose summary judgment.” Family Home
and Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525
F.3d 822, 827 (9th Cir. 2008) “Failure to comply with
these requirements ‘is a proper ground for denying
discovery and proceeding to summary judgment.'”
Id. (citation omitted). This court has discretion in
ruling on a motion to stay under Rule 56(d). Morton v.
Hall, 599 F.3d 942, 945 (9th Cir. 2010).