FILED

NOT FOR PUBLICATION

AUG 21 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AFMS LLC, No. 15-55778

Plaintiff-Appellant, D.C. No. 2:10-cv-05830- JGB-

AJB

v.

UNITED PARCEL SERVICE, INC.; MEMORANDUM*

FEDEX CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted March 8, 2017 Pasadena, California

Before: REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.

AFMS LLC (“AFMS”) appeals the grant of summary judgment in favor of

Appellees United Parcel Service, Inc. (“UPS”) and FedEx Corporation (“FedEx”)

on AFMS’ antitrust suit under § 1 of the Sherman Act, 15 U.S.C. § 1. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Summary judgment in an antitrust case is appropriate where the plaintiff

fails to define a cognizable market. See, e.g., Morgan, Strand, Wheeler & Biggs v.

Radiology, Ltd., 924 F.2d 1484, 1489 (9th Cir. 1991). AFMS proffers two market

definitions: a market for “shipping consultation services” and a market for “rate

negotiation.” AFMS has attempted to construct markets that include solely itself,

other third party rate consultants, UPS, and FedEx. They cannot, however, explain

their exclusion of in-house shipping advisors, the U.S. Postal Service, regional

carriers, or other types of shipping consultants. Further, it is highly questionable

whether UPS and FedEx are participants in the market for “rate negotiation.”1 To

establish antitrust standing, an antitrust plaintiff must participate in “the same

market as the alleged malefactors.” Amarel v. Connell, 102 F.3d 1494, 1508 (9th

Cir. 1996) (quoting Bhan v. NME Hosps., Inc., 772 F.2d 1467, 1470 (9th Cir.

1985)).

AFMS has failed to define a cognizable market or to show that both it and

Appellees are participants in that market.

The district court’s grant of summary judgment is

AFFIRMED.

1 It seems highly implausible that a shipping company, such as UPS or FedEx, could “negotiate” with itself about the rates it would charge shippers. 2 AFMS, LLC v. United Parcel Service Co., 15-55778 FILED NGUYEN, Circuit Judge, concurring in the result: AUG 21 2017

MOLLY C. DWYER, CLERK

The market definitions that AFMS advances are cognizable for U.S. COURT OF APPEALS antitrust

purposes. See Yellow Pages Cost Consultants, Inc. v. GTE Directories Corp., 951

F.2d 1158 (9th Cir. 1991). However, AFMS failed to support its legal theories

with sufficient evidence to survive summary judgment.

AFMS was not required, as the district court suggested, to provide expert

testimony regarding the relevant market. Cf. United States v. Pabst Brewing Co.,

384 U.S. 546, 549 (1966) (“Certainly the failure of the Government to prove by an

army of expert witnesses what constitutes a relevant ‘economic’ or ‘geographic’

market is not an adequate ground on which to dismiss a [Clayton Act § 7] case.”).

The district court was within its discretion, however, in excluding Stuart Brotman’s

proffered expert testimony, see Fed. R. Evid. 702; Jinro Am. Inc. v. Secure Invs.,

Inc., 266 F.3d 993, 1001–04 (9th Cir. 2001), and had no obligation to consider

inadequately cited evidence in the voluminous record before it. See Nilsson,

Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d

1538, 1545 (9th Cir. 1988).

1 AMFS, LLC v. United Parcel Service, Inc.; Fedex Corporation, No. 15-55778

FILED

AUG 21 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

REINHARDT, Circuit Judge, dissenting:

I respectfully disagree. I am not persuaded that plaintiff has failed to raise a

genuine issue of fact as to the existence of a market regarding shipping consultation

services, rate negotiations, and/or a combination of the two. See Yellow Pages Cost

Consultants, Inc. v. GTE Directories Corp., 951 F.2d 1158 (9th Cir. 1991); Telecor

Communications, Inc. v. Sw. Bell Tel. Co., 305 F.3d 1124, 1129, 1131 (10th Cir.

2002).