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Williams v. I.B. Fischer Nev.

United States Court of Appeals for the Ninth Circuit

July 14, 1993 1 , Submitted, San Francisco, California; July 21, 1993, Filed

No. 92-15463


 [*446]  OPINION


Williams appeals from the district court's summary judgment for I.B. Fischer Nevada, I.B. Fischer Properties, Inc., and Ira Fischbein  [*447]  (together Fischer) and Foodmaker, Inc. (Foodmaker). Williams argues that the court erred in rejecting his antitrust claims against Fischer and Foodmaker on the ground that they constitute a common enterprise, incapable of conspiring to restrain trade. The district court exercised jurisdiction under 15 U.S.C. § 15(a) and 28 U.S.C. § 1331. We have jurisdiction [**2]  over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

The facts of this case are described in the district court's published order, Williams v. I.B. Fischer Nevada, 794 F. Supp. 1026, 1029 (D. Nev. 1992) (Fischer Nevada). We briefly summarize them here. Foodmaker is the franchisor of Jack-in-the-Box restaurants, and Fischer is a franchisee. Foodmaker requires all of its franchisees to consent to a "no-switching" agreement, whereby the franchisees agree not to offer employment to the manager of another Jack-in-the-Box within six months of that manager's termination from employment, unless that manager obtains a release from the franchisee of the Jack-in-the-Box he or she is leaving. Williams managed a Jack-in-the-Box restaurant owned by Fischer and located in Las Vegas, Nevada. Williams wished to relocate to another Jack-in-the-Box, opening in Arizona, but Fischer would not give him the requisite release.

Williams sued Fischer and Foodmaker, alleging that the no-switching agreement violated sections 1 and 2 of the Sherman Antitrust Act (Sherman Act), 15 U.S.C. §§ 1  [**3]  & 2. In a well-reasoned order, the district court held that Williams's section 1 claims must fail because Foodmaker and Fischer are a common enterprise incapable of conspiring. Fischer Nevada, 794 F. Supp. at 1030-33. In rejecting the only one of Williams's section 2 claims that he pursues on appeal, the court held that the no-switching agreement is not anticompetitive and thus cannot violate section 2. Id. at 1034.

We ] review the district court's summary judgment independently, and like the district court we must apply the standard prescribed by Federal Rule of Civil Procedure 56(c). United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir.) (en banc), cert. denied, 493 U.S. 809, 107 L. Ed. 2d 20, 110 S. Ct. 51 (1989). ] Under that standard, we will affirm an award of summary judgment if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

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999 F.2d 445 *; 1993 U.S. App. LEXIS 18320 **; 1993-2 Trade Cas. (CCH) P70,319; 93 Cal. Daily Op. Service 5520; 93 Daily Journal DAR 9323

DON WILLIAMS, aka Donald Williams, Plaintiff-Appellant, v. I.B. FISCHER NEVADA; I.B. FISCHER PROPERTIES, INC.; IRA FISCHBEIN; FOODMAKER, INC., Defendants-Appellees.

Prior History:  [**1]  Appeal from the United States District Court for the District of Nevada. D.C. No. CV-90-00464-RDF(R). Philip M. Pro, District Judge, Presiding.


district court, no-switching, conspiring, common enterprise, summary judgment, franchisee, incapable, restraint of trade, group boycott, anticompetitive, corporate entity, Sherman Act, competitors, constitutes, restaurant, Antitrust, defeats

Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, General Overview, Summary Judgment, Entitlement as Matter of Law, Antitrust & Trade Law, Price Fixing & Restraints of Trade, Horizontal Refusals to Deal, Boycotts, Labor & Employment Law, Collective Bargaining & Labor Relations, Strikes & Work Stoppages, Genuine Disputes, Materiality of Facts, Sherman Act, Claims, Monopolies & Monopolization, Conspiracy to Monopolize