Robert Ellingson, Jr. v. Burlington Northern, Inc., Dba Burlington Northern Railway, and Western Pacific Railroad Company, a Corporation

I. Background.

Ellingson appeals the dismissal of his antitrust complaint against the Burlington Northern and Western Pacific Railroads and the award of $10,000 in attorneys fees.

Ellingson and his successors in interest operated a lumber mill in Klamath Falls. When the supply of harvestable timber in that area decreased, Ellingson purchased timber in California. In 1955 and 1957 he had it shipped on the defendant railroads, but he was dissatisfied with their charges. After negotiations, it was agreed that the railroads would give him a lower rate.

Dissatisfied, Ellingson filed a complaint against the railroads before the ICC in 1958. He alleged that the joint rate charged by the railroad was unreasonable, unjust, discriminatory and unduly prejudicial, and that Burlington Northern discriminated in favor of a mill it owned in Klamath Falls.

The ICC ruled that the rate was legal, just, reasonable and nondiscr ¡minatory. Ellingson Lumber Co., 310 I.C.C. 249 (1960).

Ellingson made no shipments over the railroads’ lines after 1958. Following fires in his mill, Ellingson closed down in 1963.

He sued the railroads in state court in 1964 for conspiracy and antitrust violations. A…