In Re Airport Car Rental Antitrust Litigation. Trans Rent-A-Car, Inc. v. The Hertz Corporation

ORDER

The opinion and dissent filed July 22, 1985, are withdrawn and the attached opinion and dissent are ordered filed.

BACKGROUND

Trans Rent-A-Car, Inc. brought this antitrust action against Hertz Corp., Avis Rent-A-Car System, Inc., and National Car Rental System, Inc., alleging that the defendants had conspired to monopolize and to exclude Trans from the “on-airport car rental market” in violation of sections one and two of the Sherman Act, 15 U.S.C. §§ 1 and 2. Trans’ action was consolidated with ten similar actions into a single multidistrict litigation. Avis settled with all of the plaintiffs in the consolidated cases. Subsequently, we affirmed a summary judgment in favor of Hertz and National in one of the consolidated cases, ruling that the plaintiff (Budget Rent-A-Car of Washington-Oregon, Inc.) had presented only evidence of conduct that was exempt from the antitrust laws under the Noerr-Pennington 1 doctrine. In Re Airport Car Rental Antitrust Litigation, 693 F.2d 84 (9th Cir.1982) (“Budget”), cert. denied, 462 U.S. 1133 , 103 S.Ct. 3114 , 77 L.Ed.2d 1368 (1983). Hertz and National filed a motion for summary judgment in the remaining cases. With the exception of…

dissenting:

I respectfully dissent. On the basis of the record before us, I cannot conclude that the defendants satisfied the requirements for the granting of a summary judgment set forth in Federal Rule of Civil Procedure 56.

Rule 56(c) states that a summary judgment shall be rendered forthwith if the evidence in the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The burden rests upon the moving party to show the absence of a genuine issue of material fact, rather than upon the nonmoving party to show the existence of such an issue. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 , 90 S.Ct. 1598, 1609-10 , 26 L.Ed.2d 142 (1970); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401 , 1405 (9th Cir.1985); Fed.R.Civ.P. 56(e). The nonmoving party has no duty to produce evidence unless the moving party has met its burden. Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir.1985). In antitrust actions, the burden on the moving party is especially great. See Poller v. CBS, Inc., 368 U.S. 464, 473 , 82 S.Ct. 486, 491 , 7 L.Ed.2d 458 (1962); Northrop Corp. v. McDonnell…

766 F.2d 1292 1985-2 Trade Cases 66,709 In re AIRPORT CAR RENTAL ANTITRUST LITIGATION. TRANS RENT-A-CAR, INC., Plaintiff-Appellant, v. The HERTZ CORPORATION, et al., Defendants-Appellees. No. 84-1778. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 16, 1985. Withdrawn from Submission Feb. 28, 1985. Resubmitted May 3, 1985. Decided Oct. 7, 1985. Francis O. Scarpulla, Stephen V. Scarpulla, Scarpulla & Scarpulla, San Francisco, Cal., for plaintiff-appellant. Jerome J. Shestack, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Daniel R. Shulman, Gray, Plant, Mooty, Mooty & Bennett, Minneapolis, Minn., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before CHOY, FARRIS, and BEEZER, Circuit Judges. ORDER The opinion and dissent filed July 22, 1985, are withdrawn and the attached opinion and dissent are ordered filed. FARRIS, Circuit Judge: BACKGROUND 1 Trans Rent-A-Car, Inc. brought this antitrust action against Hertz Corp., Avis Rent-A-Car System, Inc., and National Car Rental System, Inc., alleging that the defendants had conspired to monopolize and to exclude Trans from the…