Appeal from the United States District Court for the Central District of California. D.C. No. CV-85-0820-MRP. Mariana R. Pfaelzer, District Judge, Presiding.
Before: Procter Hug, Jr., William A. Norris, and Edward Leavy, Circuit Judges. Opinion by Judge Hug.
Vollrath Company ("Vollrath") appeals the district court's order granting the defendants' motion for judgment notwithstanding the verdict in Vollrath's antitrust action. Vollrath contends there was sufficient evidence from which the jury could have concluded that the defendants violated sections 1 and 2 of the Sherman Antitrust Act by a predatory pricing scheme for stainless steel mixing bowls and by restricting output in Korea of stainless steel steamer cookware. Vollrath further contends there was sufficient evidence from which the jury could reasonably have concluded the defendants' pricing of the stainless steel mixing bowls violated the California Unfair Trade Practices Act. Vollrath also asserts that the district court erred when it barred Vollrath from amending its complaint to allege a claim for tortious interference with a contractual and business relationship. We affirm the district court's judgment.
The parties to this dispute include a number of corporations engaged in the manufacture and distribution of stainless steel mixing bowls and steamers. Vollrath, a Wisconsin company, was engaged in the business of importing stainless steel steamers and mixing bowls purchased from companies in Korea. Sammi Corporation ("Sammi") is a large Korean trading company that purchases a large variety of Korean goods for export to the United States and other countries. Among the products exported are stainless steel steamers (which are used in the kitchen on stove burners to cook food by steaming) and stainless steel mixing bowls (which are used in the kitchen for preparation and storage). Sammisa (America) Corporation ("Sammi America") is Sammi's United States subsidiary, which is primarily engaged in the importation and sale of industrial steel products. Ken Carter Industries is a subsidiary of Sammi America. Ken Carter Industries imports and sells stainless steel steamers and mixing bowls exported by Sammi, which are the subject of this action.
Vollrath sued Sammi, Sammi America, and Ken Carter Industries for violating sections 1 and 2 of the Sherman Act and section 2(a) of the Clayton Act. Vollrath's complaint also included charges that the defendants violated California Bus. & Prof. Code §§ 17043 and 17044. Before trial, Vollrath attempted to amend its complaint so as to submit the additional charge that Sammi's output restriction gave rise to a claim of tortious interference under California law. However, on March 10, 1989, the first day of trial, the district court ruled that Vollrath would not be able to proceed with its tortious interference charge. The trial continued until April 5, 1989 and on April 11, 1989, the jury returned a verdict in favor of Vollrath on all of the federal and state claims. The jury awarded $9,478,676 in federal damages and $711,803 in state damages, making the total award of damages, after trebling the award on the federal claims, $29,147,831.
The defendants moved for a judgment notwithstanding the verdict ("JNOV") and for a new trial on July 17, 1989. On November 15, 1989, the district court informed the parties the JNOV motion would be granted but that the court would reserve judgment on the motion for new trial until the appeal from the JNOV was resolved. The court entered its judgment granting the JNOV motion on December 27, 1989. Vollrath filed a notice of appeal on January 22, 1990.*fn1
Initially, we face a jurisdictional question. Fed. R. Civ. P. 50(c) requires that, when a motion for a new trial is joined with a motion for JNOV or is prayed for in the alternative, the district court is required to issue a conditional ruling on the new trial motion.*fn2 The district court in this instance did not issue an alternate ruling as required by Fed. R. Civ. P. 50(c) but, rather, reserved its ruling on the new trial until after the appeal from the JNOV was resolved. There is no doubt that this is error, but the question becomes whether this deprives us of appellate jurisdiction. Rule 50(c) does not specify the consequences for failure to issue a conditional ruling on the new trial motion. Specifically, Rule 50(c) does not indicate that such a conditional ruling is a prerequisite to appellate jurisdiction.*fn3
In considering whether the failure to comply with the requirements of Rule 50(c) deprives this court of appellate jurisdiction, we must consider Rule 50(c) itself and also Fed. R. App. P. 4(a)(4). The authorities prior to the 1979 amendment adopting Fed. R. App. P. 4(a)(4) are in general agreement that the district court's failure to rule on a new trial motion in the alternative is, at most, a procedural flaw that does not affect appellate jurisdiction.
In at least two cases, this court has previously addressed the merits of an appeal after explicitly noting that the trial court failed to issue a conditional ruling pursuant to Fed. R. Civ. P. 50(c). In both Cockrum v. Whitney, 479 F.2d 84, 85 (9th Cir. 1973), and Gordon Mailloux Enterprises, Inc. v. Firemen's Insurance Co. of Newark, 366 F.2d 740, 742 (9th Cir. 1966), this court addressed the merits of an appeal notwithstanding the trial court's failure to issue a conditional ruling and then subsequently remanded the cause for a ruling on the new trial motion. This approach is consistent with that of other authorities which suggest it may be proper for a court of appeals either to rule on the merits of an appeal or to decide the pending new trial motion when a district court fails to comply with Rule 50(c). See Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1229 (3d Cir. 1989) (appeals court should treat new trial motion as granted); Mays v. Pioneer Lumber Corp., 502 F.2d 106, 109-110 (4th Cir. 1974), cert. denied, 420 U.S. 927, 43 L. Ed. 2d 398, 95 S. Ct. 1125 (1975). See also 9 Wright & Miller, Federal Practice and Procedure, § 2539 (Supp. 1993) (citing Mays with approval); 5A Moore's Federal Practice Par. 50.12 at 50-105 (court may order either entry of judgment or a new trial or remand case to trial court for reconsideration of new trial motion).
A somewhat closer question is presented by the subsequent amendment to Fed. R. App. P. 4(a). That provision was amended in 1979 so as to include subdivision 4(a)(4), which provides:
If a timely motion under Federal Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the Disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above . . . .
(Emphasis added.) Because the order granting the JNOV under Rule 52(b) is an order granting "any other such motion," the time for appeal commences to run. A notice of appeal is not rendered premature because no alternate ruling on the motion for a new trial has been made. The express words of Rule 4(a)(4) do not require such a result and the policy behind the rule does not counsel that result.
Rule 4(a) prevents a party from appealing a judgment when a pending post-judgment motion renders the judgment non-final. Fed. R. App. P. Rule 4(a). Specifically, the Advisory Committee note to the 1979 amendment to Rule4(a)(4) makes clear that the rule was intended to prevent the appellate court from assuming jurisdiction in a case "while the district court has before it a motion the granting of which would vacate or alter the judgment appealed from." Fed. R. App. P. 4(a)(4) Advisory Committee's note to 1979 amendment (emphasis added). When a district court grants a motion for JNOV, that order is the final judgment of the court. The district court does not have before it a motion "the granting of which would vacate or alter that judgment." The judgment based on the JNOV could be altered only by reversal on appeal, not by any ruling by the district court.
We therefore conclude that we may properly exercise appellate jurisdiction over this case.
PLAINTIFF'S LEGAL THEORIES
Vollrath's action was submitted to the jury on several legal theories. The theories ...