OpenJurist

108 F3d 1369 Hernandez v. Rrt Empire Returns Corporation Rrt

108 F.3d 1369

Myrtha HERNANDEZ d/b/a Upstate Returns, Plaintiff-Appellant,
v.
RRT EMPIRE RETURNS CORPORATION and Resource Recycling
Technologies, Inc., RRT Empire of Monroe Corporation,
Rochester Beer and Beverage Corp., Inc., Spartan Beverage,
Inc., Lake Beverage Corp., Inc., Wright Wisner Distributing
Corp., Pepsi-Cola Rochester Bottling Company, Genesee
Brewing Company, Inc., and the Rochester Coca-Cola Bottling
Corp., Defendants-Appellees.

Nos. 95-7567(L), 96-7905(CON).

United States Court of Appeals, Second Circuit.

March 18, 1997.

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

1

APPEARING FOR APPELLANT: Frank A. Aloi, Rochester, New York.

2

APPEARING FOR APPELLEES: Kenneth A. Payment, Harter, Secrest & Emery, Rochester, New York for RRT Empire Returns Corporation and Resource Recycling Technologies, Inc., and RRT Empire of Monroe Corporation.

3

Paul R. Braunsdorf, Harris, Beach & Wilcox, Rochester, New York, for Rochester Beer and Beverage Corp., Inc., Lake Beverage Corp., and Pepsi-Cola Rochester Bottling Corp.

4

Scott R. Jannette, Saperston & Day, Rochester, New York for Wright-Wisner Distributing Corp.

5

James D. Kole, Nixon, Hargrave, Devans & Doyle, Rochester, New York, for Genessee Brewing Co., Inc.

6

Michael D. Norris, Rebecca A. Kirch, Hallenbeck, Lascell, Norris & Zorn, Rochester, New York, for Rochester Coca-Cola Bottling Corp.

7

PRESENT HON. JOHN M. WALKER, Jr., HON. JOSEPH M. McLAUGHLIN, HON. HARLINGTON WOOD, Jr.,* Circuit Judges,

8

Appeal from the United States District Court for the Western District of New York.

9

This cause came on to be heard on the transcript of record from the United States District Court for the Western District of New York (Michael A. Telesca, Judge ), and was argued by plaintiff-appellant and defendants-appellees RRT Empire Returns Corporation and Resource Recycling Technologies, Inc., RRT Empire of Monroe Corporation, Rochester Beer and Beverage Corporation, Lake Beverage Corporation, and Pepsi-Cola Rochester Bottling Corporation, and submitted by defendants-appellees Wright-Wisner Distributing Corporation, Rochester Coca-Cola Bottling Corporation, and Genesse Brewing Company.

10

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

11

Myrtha Hernandez d/b/a Upstate Returns, a beverage container collector and sorter, brought suit pursuant to the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2, and 3, and New York Business General Business Law § 340(1) (the "Donnelly Act"), alleging, inter alia, that defendant conspired to prevent Upstate Returns from entering the beverage container recycling market. By order of May 2, 1996, the district court granted defendants' motion for summary judgment and denied plaintiff's cross-motions for extended discovery, pursuant to Fed.R.Civ.P. 56(f), and to amend her complaint to add several additional theories of liability. Further, plaintiff appeals from the district court's June 24, 1996, order denying plaintiff's pro se motion seeking relief from the court's earlier judgment pursuant to Fed.R.Civ.P. 60(b).

12

We affirm for substantially the reasons stated in the district court's decision and order granting defendants' motion for summary judgment and denying plaintiff's motions for extended discovery and to amend its complaint, 92-CV-6362T (W.D.N.Y. May 2, 1995), and reasons stated in the district court's decision and order of June 24, 1996 denying plaintiff's motion for relief from judgment, 92-CV-6362T (W.D.N.Y. June 24, 1996).

*

The Honorable Harlington Wood, Jr., of the United States Court of Appeals for the Seventh Circuit sitting by designation