UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MONTGOMERY COUNTY

ASSOCIATION OF REALTORS,

INCORPORATED,

Plaintiff-Appellee,

v.

REALTY PHOTO MASTER CORPORATION,

Defendant & Third Party

Plaintiff-Appellant,

v.

JOHN GILBERT; B. GEORGE BALLMAN;

DALE L. ROSS; SHANNON & LUCHS

COMPANY; WILLIAM ELLIS,

No. 95-2488

Third Party Defendants-Appellees,

and

DAVID K. HERMBECK; DELORES GICK;

MARTHA J. SCHMIDT; ROBERT L.

GRUEN; BARBARA STONE; GEORGE

MATHEOS; LISA TAYLOR; DONALD

MAY; BENNIE WALTON; RITA R.

ORCINO; HAROLD H. HUGGINS; JUDITH

DIFILIPPO; PATRICK KANE; JOANNE

ANDERSON; TOBY RHODES; PETER

RUCCI,

Third Party Defendants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

(CA-90-2141-L)

Argued: June 6, 1996
Decided: July 24, 1996

Before ERVIN, NIEMEYER, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Huntington Williams, Bethesda, Maryland, for

Appellant. Gregory Lee VanGeison, ANDERSON, COE & KING,

Baltimore, Maryland, for Appellees. ON BRIEF: James A. Rothschild, ANDERSON, COE & KING, Baltimore, Maryland, for

Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Realty Photo Master Corporation (RPM) appeals the district court's

entry of summary judgment in favor of the Montgomery County

Association of Realtors (MCAR) and Shannon and Luchs Co. on

RPM's claims that MCAR and Shannon and Luchs violated section

1 of the Sherman Act, 15 U.S.C. § 1, and a Maryland antitrust statute,

Md. Code Ann., Com. Law II § 11-204(a). We affirm on the reasoning of the district court.

I.

MCAR, an association of realtors, produces the "multiple listing

service" (MLS), a directory of the real estate listed for sale in the

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Montgomery County, Maryland, area. MCAR provides the MLS to its

members for a fee. Before 1988, MCAR distributed the MLS in softbound books. The MLS books contained a description of each listing,

including such information as its address, square footage, and asking

price. The MLS books also contained a photograph of each listing.

In 1978, MCAR began providing a computerized version of the

MLS, in addition to the MLS books. The computerized MLS is transmitted over telephone lines to MCAR's members, who access the service through personal computers. Initially, the computerized MLS

contained all the information about listings that the MLS books contained, with one important exception--the computerized MLS did not

contain photographs of the listings. In 1988, MCAR stopped printing

the MLS books because of decreased demand for them. MCAR also

began studying ways to include photographs of listings in the computerized MLS.

In 1988, RPM began selling computerized photographs of listings

to MCAR members. RPM obtained a code to access the computerized

MLS from an MCAR member. Using the access code, it obtained the

addresses of new listings as they were added to the computerized

MLS. RPM then photographed the listings, digitized the photographs,

and downloaded the photographs into its customers' personal computers. RPM also provided its customers with software to integrate the

photographs of listings with the descriptions of listings found in the

computerized MLS.

When MCAR discovered RPM's activities, it demanded that RPM

cease accessing the MLS. Additionally, Shannon and Luch's, a realty

firm that is a member of MCAR, filed a complaint with MCAR,

charging that a competing agent had violated MCAR's code of ethics

by distributing a flyer with a photograph of a Shannon and Luchs listing. The photograph had been provided by RPM.

MCAR and RPM attempted to negotiate terms under which RPM

would be allowed access to the MLS, but were unable to reach an

agreement. When the negotiations failed, MCAR sued RPM for copyright infringement, unfair competition, unauthorized wiretapping,

misappropriation of trade secrets, and breach of contract. RPM

brought counterclaims against MCAR and claims against Shannon

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and Luchs and other members and officers of MCAR, asserting, inter

alia, that they conspired to restrain trade in violation of section 1 of

the Sherman Act, 15 U.S.C. § 1, and Md. Code Ann., Com. Law II

§ 11-204(a). Specifically, RPM argued that it was the victim of a concerted refusal to deal, of a denial of access to an essential facility, and

of an illegal tying arrangement.

In 1991, while this case was pending, MCAR announced that it had

contracted with Opticom Corporation to photograph listings and integrate the photographs into the computerized MLS. RPM sought a preliminary injunction to prohibit MCAR from including the

photographs in the computerized MLS. The district court denied the

preliminary injunction, and this court affirmed. See Montgomery

County Ass'n of Realtors, Inc. v. Realty Photo Master Corp., 783 F.

Supp. 952 (D. Md. 1992), aff'd, No. 92-1300, 1993 WL 169046 (4th

Cir. May 20, 1993) (unpublished), cert. denied , 114 S. Ct. 440 (1993).

Thereafter, the parties moved for summary judgment. The district

court granted summary judgment in favor of MCAR and Shannon and

Luchs on RPM's claims under the Sherman Act and the Maryland

antitrust statute. But the district court granted RPM's motions for

summary judgment on MCAR's wiretapping and misappropriation of

trade secrets claims. Finally, the district court denied MCAR's

motions for summary judgment on its remaining claims against RPM.

In a later order, the district court directed the entry of final judgment in favor of MCAR and Shannon and Luchs on RPM's claims

under the Sherman Act and the Maryland antitrust statute. See Fed.

R. Civ. P. 54(b).1 RPM then filed this appeal.

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1 The district court determined that there was no just reason to delay

entering final judgment because MCAR has stated that it will abandon

its remaining claims against RPM if the judgment against RPM on the

antitrust claims is affirmed. See Fed. R. Civ. P. 54(b) ("[T]he court may

direct the entry of a final judgment as to one or more but fewer than all

of the claims . . . only upon an express determination that there is no just

reason for delay and upon an express direction for the entry of judgment.").

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II.

The district court must grant a motion for summary judgment when

the nonmoving party fails to demonstrate that a genuine issue exists

regarding a material fact. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); Fed. R. Civ. P. 56(c). The

nonmoving party cannot create a genuine issue of material fact by

mere speculation or by building one inference upon another. Beale v.

Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Instead, there must be evidence such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248

(1986). We review the entry of summary judgment de novo. See

Cooke v. Manufactured Homes, Inc., 998 F.2d 1256, 1260 (4th Cir.

1993).

After conducting a de novo review of the record and considering

the briefs and arguments of the parties, we have determined that no

genuine issue of material fact exists and that this appeal is without

merit. Therefore, we affirm the district court's entry of summary

judgment in favor of MCAR and Shannon and Luchs for the reasons

stated in the district court's opinion. See Montgomery County Ass'n

of Realtors, Inc. v. Realty Photo Master Corp., 878 F. Supp. 804 (D.

Md. 1995).2

AFFIRMED

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2 Although the district court did not address the tying claim in this

opinion, it did address the tying claim in its earlier order denying the preliminary injunction. We affirm the entry of summary judgment on this

claim for the reasons stated in that order. See Montgomery County Ass'n

of Realtors, Inc. v. Realty Photo Master Corp., 783 F. Supp. 952 (D. Md.

1992).

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