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. e du/thir dc ir c uit_1996/114UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5435

IDEAL DAIRY FARMS, INC.,

Appellant

v.

JOHN LABATT, LTD.; JOHN LABATT, INC.; TUSCAN DA IRY FARMS, INC.; JOHANNA DAIRIES INCORPORATED; ROBERT F ACCHINA; ABC COMPANIES, 1 THROUGH X (FICTITIOUS NAMES OF LABATT

AFFILIATES THAT ACTIVELY PARTICIPATED IN THE MONOPOLISTIC PRACTICES DESCRIBED BELOW, BUT WHOSE IDENTITIES ARE PRESENTLY UNKNOWN); JOHN DOES, 1 THROUGH X (FICTITIOUS NAMES OF OFFICERS AND/OR DIRECTOR S OF THE

CORPORATE DEFENDANTS WHO ACTIVELY PARTICIPATE D IN THE

DECISION-MAKING REGARDING THE MONOPOLISTIC P RACTICES DESCRIBED BELOW, BUT WHOSE IDENTITIES ARE PR ESENTLY UNKNOWN); ELMHURST MILK & CREAM COMPANY, INC.; LOCAL 584, INTERNATIONAL BROTHERHOOD OF TEA MSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AM ERICA, AFL-CIO; HONEYWELL FARMS, INC., t/a ELMHURS T DAIRY

TUSCAN DAIRY FARMS, INC.,

Defendant/Third-Par ty Plaintiff

v.

IDEAL DAIRY FARMS, INC.; GILBERT LEVINE; MARK GREENBERG,

Third-Party Defenda nts

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 92-cv-02469)Argued May 3, 1996

Before: SCIRICA and ROTH, Circuit Judges and GODBOLD, Circuit Judge

(Opinion Filed July 24, l996)

Sheldon A. Weiss, Esq. (Argued)
225 Millburn Avenue
Suite 203 Millburn, NJ 07041

Steven Pasternak, Esq. Pasternak, Feldman & Plutnick 70 South Orange Avenue Eisenhower Plaza South, Suite 245 Livingston, NJ 07039

Attorneys for Appellant

Thomas H. Moreland, Esq. (Argued) Lawrence E. Jacobs, Esq. Kramer, Levin, Naftalis, Nessen, Kamin & Frankel
919 Third Avenue New York, NY 10022

Attorney for Appellee Tuscan Dairy Farms

Frederick L. Whitmer, Esq. Pitney, Hardin, Kipp & Szuch
P.O. Box 1945 Morristown, NJ 07962-1945

Attorney for Appellees John Labatt Ltd.; John Labatt, Inc.; Johanna Dairies, Inco rporated and
Robert Facchina

OPINION OF THE COURTROTH, Circuit Judge:

The litigation giving rise to this appeal began when a locally owned dairy in Northern New Jersey sued a l arge Canadian corporation, its affiliates, and several New Jersey dairies purchased by the corporation in the 1980s. The pla intiff, Ideal Dairy Farms, Inc. ("Ideal"), filed a complaint that raised breach of contract, tort, fraud, RICO, and antitrust claim s. One of the defendants, Tuscan Dairy Farms ("Tuscan"), filed a counterclaim against Ideal seeking payment of unpaid invoices to talling over $2 million. After extensive discovery proceedings, def endants moved for summary judgment on their counterclaim and on a ll of Ideal's twenty-five claims. The district court granted summary judgment dismissing the claims against the defendants on the basis of its finding that Ideal failed to raise a genuine issue of material fact. It also granted summary judgment in favor of defendants on their counterclaim and awarded Tuscan $2,264,333.71 . Ideal appealed the district court's summary judgment orde r. With regard to Ideal's claims involving th e 1985 supply contract between Tuscan and Ideal, we believe that Ideal has sufficiently demonstrated that genuine issues of ma terial fact exist that preclude summary judgment. As a result, we will reverse and remand the following claims: (1) Breach of Contract (Eleventh Count);

(2) Breach of Implied Covenant of Good Fa ith (Twelfth Count); and

(3) Tortious Interference with Contract ( Fourteenth Count). With regard to all other remaining claims, we find that summary judgment was properly granted against Ideal. We wi ll therefore affirm the district court's order dismissing all of the antitrust claims, the common law fraud and RICO claims, and t he tort claims not involving the 1985 supply contract.

I. The appellant, Ideal, is a New Jersey corp oration owned by Mark Greenberg and Gil Levine. Ideal distribute s processed dairy products to retail customers and to customers in the food service industry. In the mid-1980s, the Labatt cor poration, a Canadian entity with major interests in the beer an d dairy industries, began acquiring dairies in the United S tates. For example, in Northern New Jersey, Labatt acquired Tu scan and Johanna Dairy Farms ("Johanna"). Labatt also purch ased smaller dairy plants in Northern New Jersey, which it eithe r consolidated with other more efficient plants or shut down. In 1985, Ideal found itself in need of a n ew processed milk supplier and entered into negotiations with Tu scan. Tuscan purchases raw dairy products from farmers and proce sses them for sale to retail and industrial customers, as well as todistributors like Ideal. At that time, Tuscan was owned by Lou

Caiola. Mr. Caiola submitted a proposed supply con tract to Ideal for its consideration. Joint App. 316-23 ("1985 co ntract"). Ideal had no part in the preparation of the contrac t and signed the contract without making any changes to the text . The contract covered pricing and payment requirements b ut contained no clause providing for a term after which the cont ract would expire, nor did it discuss how the contract could b e terminated. Mark Greenberg admitted at his deposition that, whe n they signed the contract, he and Mr. Levine were aware that the contract had "no length" and that they were "satisfied with no p eriod of time." Joint App. 527 & 529. The 1985 contract provided that "[a]ll mil k and milk product prices [would be] based upon [the February 1985] Federal Milk Marketing Order." See Joint App. 317 (1985 co ntract, paragraph 2). The Federal Milk Marketing Order set s the minimum "Class I" price that a processor must pay to a farm er. The contract further provided that future prices could be adjusted whenever the Department of Agriculture changed Clas s I prices and also when "documentable or industrywide cost[s]" in creased or decreased. Id. Such price adjustments were to be "consistent with generally accepted industry practice." Id. I n addition to those adjustments, the contract also allowed Tuscan to add "an additional amount equal to 10% of [any] increase or decrease" after April 1, 1986. Id. Labatt purchased Tuscan Dairy in December 1986. Lou Caiola continued to manage Tuscan's business, howev er, until October 1987. At that time, Herbert England, a Lab att employee, was appointed to replace Mr. Caiola. England was i n charge at Tuscan until 1988, when he was replaced by Robert F acchina who
ran the business for the remainder of Tuscan's rela tionship with

Ideal. Every day, Ideal ordered products from Tus can. Every night, Tuscan loaded the order onto Ideal's trucks so that Ideal could deliver its cargo to customers the following morning. Every week, Tuscan sent Ideal an invoice of its pur chases. Ideal responded by paying the invoices, meticulously subt racting for any product not received, or received but substanda rd. Every month, for nearly seven years, Tuscan sent Ideal no tice of any upcoming price changes. Often these notices includ ed a statement explaining the price changes and a newly revised pr ice list of Tuscan's offerings. Soon after it began doing business with Tu scan, Ideal realized that Tuscan was charging prices well above expected contract prices. Beginning in 1987, Tuscan began s teadily increasing prices, usually blaming the increases on various premiums charged by farmers, cooperatives, and stat e governments. For example, Tuscan increased Ideal's prices in 198 7 claiming that RCMA, a dairy farmers' cooperative, had increa sed the premium that it charged in addition to the Class I price. Later, when RCMA reduced its premium, Ideal never received the benefit
of the cost decrease. Ideal discovered this overch arging by reading certain industry bulletins that publish act ual changes in premiums charged by various raw milk suppliers.Ideal first complained to Lou Caiola in 19 87 that these

price increases violated the terms of the 1985 cont ract, and for the next five years, Ideal continued to complain ab out the overcharges to Mr. Caiola's successors. At times, management at Tuscan promised that, if Ideal was patient, it woul d get the decrease that was due. At other times, Tuscan's ma nagement
refused to discuss the issue. At a meeting held on March 2, 1990, Tuscan 's management attempted to rationalize its prices by comparing th em, on a blackboard, to price increases authorized under the 1985 contract. In the end, Tuscan was unable to show on the blackboard that it had been increasing prices in co mpliance with the contract's pricing formula. Instead, the black board calculations highlighted the extent of Tuscan's ove rcharging. Mr. Facchina terminated the meeting and refused to discuss prices

further.
Because Labatt owned all of the dairies ca pable of handling Ideal's supply needs, Mr. Greenberg and Mr . Levine believed that they were stuck with Tuscan. They do ubted that they could obtain a better price elsewhere. Theref ore, they concluded that they had no choice but to pay the ov ercharges. In addition, a New Jersey regulation hampered Ideal's ability to shop freely for a milk supplier who might offer a l ower price. Section 2:52-3.1 of the New Jersey Administrative C ode requires that milk dealers give milk suppliers two weeks not ice before changing their source of supply. N.J. Admin. Code, tit. 2,  52- 3.1 (1996). This regulation combined with Labatt's control of several local dairies deterred Ideal from taking it s business elsewhere, and Ideal's management begrudgingly cont inued to pay the price increases. In late 1990, Tuscan began pressuring Idea l to enter a new contract with a five or six year term. Tuscan informed Ideal that, under a new policy implemented at all Labatt- owned dairies, all customers would be required to enter new contra cts. Ideal successfully delayed signing a new agreement and se cretly began looking for a new supply arrangement. In May 1992, Ideal began to negotiate with Cumberland Farms dairy ("Cumberland"). Initially, Ideal sough t only to acquire a certain size container, which Tuscan had discontinued. Cumberland, however, refused to supply just the one item but offered to supply Ideal with all of its product nee ds. Once they entered negotiations, Ideal also began building its own depot in Newark, where it could refrigerate products after h auling them from Cumberland's South Jersey premises. On June 12, 1992, Ideal opened its own dep ot and began receiving supplies from Cumberland. It abruptly se vered its relationship with Tuscan, leaving 15 invoices unpai d. Also in June 1992, Ideal commenced this lawsuit against Lab att, its affiliates, and the Labatt-owned dairies, alleging violations of antitrust, contract, fraud, and tort law. The dist rict court granted the defendants motion for summary judgment and ordered Ideal to pay the unpaid invoices, thereby awarding Tuscan a total of $2,264,333.71. Ideal appeals the district court 's summary judgment orders.II.

The standard of review applied to the appe al of an order granting summary judgment is firmly establish ed. "An appellate court reviews the district court's grant of summary judgment de novo, applying the same standard as the district court. This requires that [the court] view the und erlying facts and all reasonable inferences therefrom in the ligh t most favorable to the party opposing the motion." Penns ylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995) ( citation omitted; emphasis added); see also Helen L. v. DiDa rio, 46 F.3d 325, 329 (3d Cir.), cert. denied, 116 S.Ct. 64 (199 5); Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 200 ( 3d Cir. 1995); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3 d Cir. 1976), cert. denied, 429 U.S. 1038 (1977). Summary judgment should be granted only if a court concludes that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." Fed. R. Civ. P. 56(c). The moving party bea rs the burden of proving that no genuine issue of material fact i s in dispute. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio C orp., 475 U.S. 574, 586 n.10 (1986). Once the movant has carried its initial burden, the nonmoving party "must come forward with 'specific facts showing that there is a genuine issue for tri al.'" Id. at 587 (quoting Fed. R. Civ. Proc. 56(e)) (emphasis ad ded in Matsushita). The non-movant must present concrete evidence supporting each essential element of its claim. Ce lotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The question for this court, then, is whet her Ideal presented sufficient evidence to create a dispute r egarding a genuine issue of material fact, viewing the evidenc e in the light
most favorable to Ideal. Gottshall v. Consolidated Rail Corp., 56 F.3d 530 (3d Cir. 1995); Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. den ied, 507 U.S. 912 (1993); Nathanson v. Medical College of Pennsyl vania, 926 F.2d 1368, 1381 (3d Cir. 1991). "Facts that could alter the outcome are 'material', and disputes are 'genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (citations omitted). The district court had subject matter juri sdiction over the plaintiff's complaint in this case pursuant to 28 U.S.C.  1301, 15 U.S.C.  1 et seq., 28 U.S.C.  1367, and 18 U.S.C.  1965. It had pendent jurisdiction over the plainti ff's state law claims. This court has jurisdiction to review the district court's final order granting summary judgment under 28 U.S.C. 
1291.

III. The district court properly granted summar y judgment dismissing Ideal's fraud and RICO claims, as well a s its antitrust claims. There is simply not enough concr ete evidence in the record supporting these claims. However, th e district court improperly granted summary judgment dismissin g Ideal's contract claims because genuine issues of material fact do exist.A.

In its second amended complaint, Ideal arg ued that Tuscan breached the 1985 supply contract by increas ing prices in a manner not consistent with the pricing formula es tablished by
the contract. The district court found that the fo llowing facts were undisputed: (1) A contract was formed between the part ies in 1985, and it contained a price formula; (2) Begi nning in 1987, the invoices Tuscan sent to Ideal di d not follow the price formula in the contract; (3) Ide al complained about this failure to comply with [the] co ntract price formula numerous times; (4) Tuscan told Id eal that the invoice prices were the prices it was char ging, and
that Ideal could take its business elsewhe re if it wanted; and (5) Ideal continued to order p roducts from Tuscan at the invoice prices, not contract prices, for a period of five years. Slip Op. at 19. The court found that there were th ree possible ways to construe these facts: (1) the contract was intact from its forma tion until June of 1992 and Tuscan continually breach ed the contract from 1987 on; (2) the contract wa s intact from its formation until June of 1992, but the price term was modified by the invoices and Ideal's p ayment on them; or (3) the original signed contract was terminated in 1987, and from the point of termination on the parties formed a new contract each time Ideal ordered goods, Tuscan sent them an invoice , and Ideal made a payment based on that invoice.
Id. at 20. "Summary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonab ly drawn from the facts even if the facts are undisputed." Natha nson, 926 F.2d at 1380 (citing Gans v. Mundy, 762 F.2d 338, 340 (3 d Cir.), cert. denied, 474 U.S. 1010 (1985)). In addition, "[a]ny 'unexplained gaps' in materials submitted by the moving party . . ., if pertinent to material issues of fact, justify denia l of a motion for summary judgment." Ingersoll-Rand Financial Co rp. v. Anderson, 921 F.2d 497, 502 (3d Cir. 1990) (quoting O'Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir. 1989)). Finding three possible constructions of the facts suggests that there is a genuine issue of material fact about which a jury could reasonably disagree. The court's finding of factua l ambiguity should have ensured that the contract claim proceed to trial.
It is well-established that "the inference s to be drawn from the underlying facts . . . must be viewed in t he light most favorable to the party opposing the motion." Matsu shita, 475 U.S. at 587-88 (citing United States v. Diebold, In c., 369 U.S. 654, 655 (1962)). In this case, however, instead o f allowing a jury to decide which interpretation of the facts wa s correct, the district court chose a favored interpretation. Mor eover, it chose an interpretation that favors the movant over the nonmovant. The district court immediately rejected th e idea thatthe 1985 supply contract had been modified by the r egular

submission and payment of invoices. It based its r ejection on a provision of the contract that explicitly prohibits modification by a course of conduct without a signed writing. J oint App. 321- 322 (1985 Contract, para. 14). Between the two rem aining constructions, the district court held that the thi rd option was

"the correct one." Id. The court held that "as a matter of law, t he 1985 Contract was terminated by the departure in 1987 fr om the pricing terms set forth in that contract." Slip Op. at 23 (emphasis added). In support of its holding, the court point ed out that the agreement was an at-will contract because it pr ovided for no term. The court concluded that, by overcharging, T uscan "did seemingly indicate [its] termination of the agreeme nt by [its] actions." Id. Thus, the district court held that the at-will contract was terminated in 1987, and from 1987 unti l 1992, the parties re-contracted each time Tuscan offered a ne w invoice and Ideal accepted by payment. Id. The court held the refore that, even if Ideal had a claim for breach of contract by termination without reasonable notice, that claim was barred un der the fouryear statute of limitations for contract claims. We find that the district court improperly resolved a genuine issue of material fact. The district court 's finding that the contract was terminated by implication in 1987 is not the only inference that could reasonably be drawn f rom the facts. Viewing the facts in a light most favorable to Idea l, Tuscan's management did not indicate that the contract was " meaningless" or "not valid" until late 1990. At that time, Laba tt implemented a policy that required Tuscan to enter new supply c ontracts with all buyers. According to the record, Tuscan began to press Ideal to sign a new agreement in late 1990 or early 1991. See Joint App. 576-88 & 1061. Until late 1990, Tuscan's management did i ts best to justify the price increases in a manner that was co nsistent with the 1985 contract pricing provisions. For instance , at the March 2, 1990, meeting, Mr. Facchina attempted to show on a blackboard that its prices complied with the terms of the 1985 contract.
This conduct is not consistent with the district co urt's finding that the contract was terminated prior to 1990. Ra ther, by using the 1985 contract as a guide to proper pricing, Tus can expressed its belief that the contract was operative at the t ime of the March 2, 1990, meeting. By 1991, it is logical to conclude that Tu scan had
indicated its unilateral termination of the 1985 co ntract. Ideal filed this suit in June 1992. Ideal may therefore have a valid contract claim that is not time-barred by the statu te of limitations applied to contract claims. Because a reasonable jury could find that the termination occurred in 19 90 or 1991, rather than in 1987, summary judgment should not ha ve been granted. In sum, we find that the district court di d not view the facts in a light most favorable to Ideal, the n on-movant,
when it concluded that the contract was unilaterall y terminated by conduct in 1987. The court's order granting summary judgmentagainst Ideal on its breach of contract claim will therefore be

reversed and remanded.

B. In a single sentence, the district court e xplained its dismissal of Ideal's claim alleging breach of the c ontract's implied covenant of good faith. The court said, "I t is obvious that defendants cannot have violated good faith by their 'denial of the existence of the Contract,' when the contrac t was terminated prior to their denial by the change in t he prices charged by defendants." Slip Op. at 27-28. The co urt therefore granted the defendants' motion for summary judgment

. As discussed above, a reasonable jury coul d find that the supply contract was terminated, not by the pric es charged in Tuscan's invoices, but by Tuscan's more explicit re pudiation of
the contract in late 1990. If the contract was not terminated by its conduct prior to Tuscan's express denial, but r ather was terminated by the express denial itself, Ideal may indeed have a claim for breach of the good faith covenant. At an y rate, there is a fundamental chronological dispute which presen ts a genuine
issue of material fact relevant to Ideal's claim th at Tuscan breached the contract's implied covenant of good fa ith. This factual discrepancy was improperly re solved by the district court on summary judgment and should have been preserved for resolution by a jury. Therefore, the court's d ismissal of
Ideal's claim that Tuscan breached the 1985 contrac t's covenant of good faith will also be reversed and remanded.

C. The same temporal dispute requires reversa l of the district court's order granting summary judgment on Ideal's
tortious interference with contract claim. The dis trict court held that "[b]ecause Ideal brought its tortious int erference with contract claim more than two years after the contra ct was terminated without reasonable notice," its claim wa s barred by a two-year statute of limitations. Slip Op. at 31.
The court's conclusion was based on its fi nding that the contract was terminated in 1987. As we previou sly concluded, the facts may be reasonably interpreted to support a finding that
the contract was not terminated until late 1990 or early 1991. If a jury found that the contract was not terminate d until late 1990, the statute of limitations may not bar Ideal' s tortious interference claim. Therefore, summary judgment wa s improperly granted, and the court's order will be reversed and remanded.

IV. The district court properly granted summar y judgment dismissing the balance of Ideal's claims.

A.
The district court did not err in dismissi ng Ideal's claim that Tuscan committed fraud by departing upwa rd from the 1985 contract's pricing scheme. Under New Jersey l aw, a plaintiff claiming fraud must prove that it detrime ntally relied on an intentionally misleading statement made by th e defendant. See, e.g., John Hancock Mutual Life Ins. Co. v. Cro nin, 51 A.2d 2 (N.J. Err. & App. 1947). Ideal admitted however th at, early in its relationship with Tuscan, it became aware that the invoiceprices were higher than the prices envisioned in th e contract.

Ideal cannot now claim that it detrimentally relied on Tuscan's intentional misrepresentation because Ideal knew it was being overcharged for purchases almost from the start. T herefore, the district court properly found that Ideal had no cau se of action
in fraud.

B. For very similar reasons, Ideal cannot mak e out a claim for violation of the federal RICO statute, 18 U.S.C

.  1961 etseq., nor for violation of New Jersey's RICO Act. N.J. Stat. Ann. 2C:41-1 et seq. As the fraudulent predicate a cts required by both state and federal RICO statutes, Ideal argu ed that Tuscan committed mail and wire fraud. However, the distri ct court found that there could be no finding of fraud in light of Ideal's admission that, early in the relationship, it knew that Tuscan was not complying with the contract. Therefore, th e district court held that Ideal could "not rely on fraud as a predicate act for purposes of Federal RICO," nor for purposes of New Jersey RICO. Slip Op. at 18-19. We agree that Ideal cannot make out a clai m for mail or wire fraud. Indeed, no fraudulent act occurred in this case. Without a predicate act, Ideal cannot possibly succ eed on its
federal and state RICO claims. These claims were t herefore properly dismissed.

C.
The district court also dismissed Ideal's claim that Tuscan tortiously interfered with its prospective e conomic advantage. In support of its claim, Ideal alleged that Tuscan undermined its relationships with customers by offe ring them extremely low prices and that Tuscan told Ideal to stay away from
certain new retailers.
The district court found that Ideal failed to present
evidence of each essential element of its interfere nce claim. With regard to Ideal's allegation that Tuscan under mined its relationship with a customer, the court found that Tuscan entered into an agreement with Idea l to return the customer and to make supplemental paym ents to Ideal. This in effect eliminated any clai m for tortious interference, substituting a cont ractual obligation. Joint App. 462 (Dist. Ct. Op. 29). With regard to the allegations that Tuscan employees interfered by war ning Ideal to stay away from certain prospective customers, the c ourt found no evidence of injury because "Ideal . . . failed to p ut forward evidence that it was even interested in any of [tho se] accounts .
. .." Id.
To establish a claim of tortious interfere nce with prospective economic advantage, Ideal must present concrete evidence that Tuscan intentionally and maliciously interfered with a "protectable right," and that Tuscan's inter ference caused injury. Printing Mart -- Morristown v. Sharp Elect ronics Corp., 563 A.2d 31, 37 (N.J. 1987). "A complaint must dem onstrate that a plaintiff was in 'pursuit' of business." Id. Fi rst, Ideal has not shown that it was in serious pursuit of the new accountstargeted by Tuscan. Second, the allegations made b y Ideal fail

to reach the necessary level of maliciousness. Id. ("[M]alice is
defined to mean that the harm was inflicted intenti onally and without justification or excuse."). Tuscan admitte d that it was wrong to solicit Ideal's customer and voluntarily g ave the account back to Ideal. Third, Ideal has not shown that "'if there had been no interference[,] there was a reaso nable probability that [it] would have received the antic ipated economic benefits.'" Id. (quoting Leslie Blau Co. v. Alfieri, 384 A.2d 859 (App. Div.), certif. denied, 391 A.2d 523 (1978)). Thus, we agree with the district court's c onclusion
that Ideal failed to establish a claim for tortious interference with prospective economic advantage. Summary judgm ent dismissing this claim was properly granted.

D. We also agree with the district court's fi nding that Ideal failed to present sufficient evidence to supp ort its antitrust claims. At one time, the Supreme Court e ndorsed a slightly stricter standard of review when a summary judgment order was challenged in an antitrust case. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962) ; Harold Friedman, Inc. v. Kroger Co., 581 F.2d 1068, 1080 ( 3d Cir. 1978). However, that "special standard" was abandoned in E astman Kodak Co. v. Image Technical Servs., Inc., 112 S.Ct. 2072 , 2083 (1992); see also Town Sound, 959 F.2d at 481 ("It may be th at because antitrust cases are so factually intensive that summary judgment occurs proportionately less frequently there than i n other types of litigation, but the standard of F.R.C.P. 56 rema ins the same."). Therefore, the ordinary standard applies. Eastman Kodak, 112 S.Ct. at 2083. In order to survive a su mmary judgment challenge, a plaintiff must prove that a genuine is sue of material fact could be presented at trial, such tha t a reasonable jury could return a verdict for the plaintiff on th at issue.
1.
The district court did not err in dismissi ng Ideal's
essential facilities claim. To establish the neces sary elements of this claim, Ideal was required to show: (1) control of the essential facility by a monopolist; (2) the competitor's inability practically or reasonably to duplicate the essential faci lity; (3) denial of the use of the facility to a com petitor; and (4) the feasibility of providing the facil ity. Delaware Health Care, Inc. v. MCD Holding Co., 893 F. Supp. 1279 (D.Del. 1995) (citing among others Monarch Entertai nment Bureau, Inc. v. New Jersey Highway Auth., 715 F. Supp. 1290 , 1300 (D.N.J.) (citations omitted), aff'd 893 F.2d 1331 ( 3d Cir. 1989)). The district court properly applied this t est and
concluded:
Even if Ideal could demonstrate that defen dants monopolized the market, that it was unable to duplicate an essential facility, and that it was fea sible for defendants to make the essential facility available to Ideal, Ideal cannot contradict one importa nt fact:defendants did not deny Ideal use of its f acility, the

third factor. Slip Op. at 32. The district court is correct. Al most five years after realizing that Tuscan was overcharging it, Ideal's business was still located on the premises of Tusca n Dairy Farms.
The facts in the record show that Ideal was not den ied use of
Tuscan's facilities. Thus, the district court's ruling in favor of defendants' motion for summary judgment was proper. Because the New Jersey Antitrust Act provides that it should be construed in a manner consistent with federal antitrust law, Ide al's parallel New Jersey claim was also properly dismissed. See N.J. Stat.

Ann.  56:9-18.
2. Ideal claims that the defendants conspired with Elmhurst Dairy to monopolize milk production in New Jersey, in
violation of  1 of the Sherman Act. 15 U.S.C.  1. The court dismissed this claim, finding that Ideal failed to submit anyevidence supporting its assertion that defendants conspired with Elmhurst. Slip Op. at 36. It also found that Idea l failed to present any evidence proving the four essential ele ments of a  1 claim set forth in J.F. Feeser, Inc. v. Serv-A-Port ion Inc., 909 F.2d 1524, 1541 (3d Cir. 1990), cert. denied, 499 U .S. 921 (1991). A plaintiff alleging a  1 violation has a heavy burden when opposing a summary judgment motion on that cla im. In Tunis Bros. Co., Inc. v. Ford Motor Co., 952 F.2d 715 (3d Cir. 1991), cert. denied, 505 U.S. 1221 (1992), this court expl ained: "[W]hen an antitrust defendant's conduct is consist ent with both permissible competition and illegal conspiracy, a p laintiff 'must present evidence "that tends to exclude the possibi lity" that the alleged conspirators acted independently' in order to survive a motion for summary judgment." Id. at 720 (quoting Matsushita, 475 U.S. at 588 (quoting Monsanto Co. v. Spray-Rite Serv. Corp.
, 465 U.S. 752, 764 (1984))) (emphasis added). Ideal has not excluded the possibility tha t the agreement between Elmhurst and Tuscan was completel y legal. Although Ideal claimed that the conspiracy was fina lized by a written agreement between Tuscan and Elmhurst, no s uch document was presented to the court. In fact, the record wa s so vague that the district court could not determine how the alleged agreement might restrain trade in violation of the Sherman Act. Slip Op. at 36.
The district court was correct to conclude that if the evidentiary record were reduced to admissible evide nce, the plaintiff could not carry its burden of proof at tr ial. Clark v. Modern Group Ltd., 9 F.3d 321, 326 (3d Cir. 1993) ( holding that when opposing summary judgment motion, "plaintiff . . . must point to admissible evidence that would be sufficie nt to show all elements of a prima facie case under applicable sub stantive law"). Summary judgment was therefore properly gra nted on
Ideal's  1 Sherman Act claim and on its parallel state law c laim.
3. To survive a summary judgment motion on it s Sherman Act 2 monopolization claim, Ideal had to show that (1) Labatt

possessed monopoly power in the relevant market, an d that (2) Labatt willfully acquired and maintained monopoly p ower and did not acquire its monopoly share due to "growth or de velopment as a consequence of a superior product, business acumen, or historical accident." Bonjorno v. Kaiser Aluminum & Chemical Corp., 752 F.2d 802, 808 (3d Cir. 1984), cert. denied, 477 U.S . 908 (1986).
The district court held that Ideal had not presented sufficient evidence of these essential elements, an d it therefore granted the defendants' summary judgment motion. T he court gave two reasons in support of its ruling. First, it he ld that Ideal failed to establish that the relevant geographic ma rket was Northern New Jersey. Slip Op. at 41; see also id. at 46. And second, it concluded that a showing that Labatt hel d a market share of 47% in New Jersey did not prove the existe nce of a monopoly in Northern New Jersey. Id. at 42. Until the late 1980s, milk dealers faced s ignificant regulatory barriers inhibiting free competition bet ween New York City and New Jersey. New York enforced regulations which, for practical purposes, excluded New Jersey dealers fro m the City. N.Y. Agric. & Mkts. Law  258-c. And New Jersey enforced similar regulations protecting its dealers from New York co mpetitors. N.J. Admin. Code, tit. 2,  52-6.1 & -6.2. By the 1990s, however, both of these regulatory schemes had been challenged in federal courts and repealed. Thus, when Ideal file d its monopolization claim, these barriers no longer limi ted its potential market to New Jersey. We agree that Ideal's relevant market and market share
calculations are dubious. Ideal bore the burden of establishing the relevant market for purposes of proving its act ual monopoly claim. Tunis Bros., 952 F.2d at 726. Ideal argued that the relevant market was Northern New Jersey or, in the alternative, the state of New Jersey. Like the district court, we are not
convinced that either is the relevant market for mi lk. Ideal has failed to clearly establish the relevant product an d geographic market necessary to make this claim. Nor has Ideal persuaded this court that La batt controls a monopoly share of either proposed relevant market . Ideal estimated that Labatt held 47% of the New Jersey ma rket and then extrapolated from that figure an estimate that Laba tt controlled a larger share of the market in Northern New Jersey . It is equally possible that Labatt might hold a smaller s hare of the market in Northern New Jersey. Ideal offered nothi ng further to support its speculations. Even if Ideal had shown that Labatt controlled 47% of the New Jersey market, without co ncrete evidence of anticompetitive behavior, this percenta ge does not prove Labatt to be a monopolist in New Jersey, nor in Northern New Jersey. Fineman v. Armstrong World Indus., Inc ., 980 F.2d 171, 201 (3d Cir. 1992), cert. denied, 113 S.Ct. 12 85 (1993) ("As a matter of law, absent other relevant factors, a 5 5 percent market share will not prove the existence of monopo ly power."). We therefore agree with the district court's conclu sion that "Ideal fail[ed] to prove that defendants possessed monopoly power in any market." Slip Op. at 42. The district cour t properlygranted summary judgment.

4. To prove the essential elements of its att empted monopolization claim, Ideal was required to present concrete evidence that (1) Labatt had engaged in predatory o r anticompetitive conduct with (2) specific intent to monopolize and with (3) a dangerous probability of achieving m onopoly power. See Spectrum Sports, Inc. v. McQuillin, 113 S.Ct. 8 84, 890-91 (1993). It is clear that, when considering the "da ngerous probability" prong of an attempted monopolization c laim, a court must "inquir[e] into the relevant product and geogr aphic market and the defendant's economic power in that market." Id. at 892. Whether a party violates  2 of the Sherman Act by "attempt[ing] to monopolize" is "a question of prox imity and degree." Swift and Co. v. United States, 196 U.S. 375, 402 (1905). Further, "the conduct of a single firm, go verned by  2, 'is unlawful only when it threatens actual monopoli zation.'" Spectrum Sports, 506 U.S. at 456 (quoting Copperwel d Corp. v. Independence Tube Corp., 467 U.S. 752 (1984)). As the Supreme Court explained: The purpose of the Act is not to protect b usinesses from the working of the market; it is to p rotect the public from the failure of the market. Th e law directs itself not against conduct which is compet itive, even severely so, but against conduct which unf airly tends to destroy competition itself. Spectrum Sports, 506 U.S. at 458. Even assuming that the relevant market was Northern New Jersey, we do not believe that Ideal presented suff icient evidence that Labatt posed a dangerous threat of de stroying competition in the milk industry. We conclude that a higher degree and proximity to actual monopolization must be demonstrated before an award of treble damages can be seriously pursued. Without proving a dangerous probability t hreatening destruction of competition in a clearly defined rel evant market, the plaintiff may not proceed beyond summary judgme nt. Therefore, we find that the district court properly granted summary judgment dismissing Ideal's attempted monop olization
claim.

5. To prove the essential elements of a claim brought
under  7 of the Clayton Act, Ideal must prove that it has suffered "injury of the type the antitrust laws wer e intended to prevent." Brunswick Corp. v. Pueblo Bowl-O-Mat, In c., 429 U.S. 477, 489 (1977). Ideal claims only that competitio n in the industry has been reduced by Labatt's acquisitions. However, it has not proved that it has been injured by the redu ction in competition. Moreover, there is no evidence in the record demonstrating any harm incurred by Ideal. As the d istrict court held, such conclusory assertions alone will not sup port a Clayton Act claim. The district court properly granted sum mary judgment on that claim and on Ideal's parallel state law cla im.

V. Finally, Ideal's civil conspiracy claim wa s alsoproperly dismissed. As discussed above, Ideal fail ed to present

sufficient evidence of any conspiracy that allegedl y occurred between the Labatt-owned dairies and Elmhurst Dairy . Ideal additionally claims, however, that the Labatt-owned dairies conspired among themselves to obtain a monopoly in the industry.
It is well-established that subsidiaries cannot ill egally conspire with a corporate parent under  1 of the Sherman Act. Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 777 (1984) (holding that a corporate parent and its who lly owned subsidiary "are incapable of conspiring with each o ther"). Therefore, the district court properly held that th e civil conspiracy claim should also be summarily dismissed

.

VI.
We will reverse and remand the district co urt's order granting summary judgment on the following three cl aims brought against the defendants by Ideal: (1) the breach of contract claim; (2) the breach of the contract's covenant of good faith claim; and (3) the tortious interference with contr act claim. We will affirm the district court's order granting summary judgment in favor of defendants on all of the remaining clai ms.

Ideal Dairy Farms, Inc. v. John Labatt, Ltd., et al ., No. 95-5435

SCIRICA, Circuit Judge, concurring in part and diss enting in part.

I respectfully dissent from part III of th e majority opinion because I believe the district court correc tly entered summary judgment on Ideal's contract, implied coven ant of good faith, and tortious interference with contract clai ms.
I. The Ideal-Tuscan relationship spanned seve n years from
1985 to 1992. Its terms were memorialized in a wri tten contract (the "1985 Contract") that did not specify a term o f duration anddid not provide for notice of termination or any ot her

termination procedure. From almost the beginning o f the relationship, Tuscan did not comply with the pricin g provisions of the 1985 Contract. From 1987 onwards, Ideal rep eatedly complained to Tuscan about price increases and asse rted that Tuscan's prices were not in accordance with the 198 5 Contract. But Tuscan's management consistently refused to adj ust invoice prices in response to Ideal's complaints, and Tusca n told Ideal
it could take its business elsewhere if it wanted. Nevertheless, Ideal continued to order products from Tuscan at in voice prices for five more years. On the basis of these undisputed facts, th e district court granted summary judgment to the defendants. Opinion, Ideal Dairy Farms, Inc. v. John Labatt Ltd. et al., No. 9 2-2469 (D. N.J. May 11, 1995). It held that the 1985 Contract was an atwill contract governed by the New Jersey Uniform Co mmercial Code, and, because the contract was at-will, "[it] was te rminated [as a matter of law] by the departure in 1987 from the pr icing terms set forth [therein]" Id. at 23. The majority disa grees with the district court's legal analysis. It concludes that factual
issues remain as to when Tuscan terminated the 1985 Contract, and believes that Tuscan may have breached the 1985 Con tract continuously over a three to five year period.

II. The 1985 Contract specified no term. Unde r the New Jersey Uniform Commercial Code, a contract of indef inite duration "is valid for a reasonable time," but "may be termi nated at any time by either party." N.J. Stat. Ann.  12A:2-309(2). "Termination of a contract by one party . . . requ ires that reasonable notification be received by the other pa rty." N.J.

Stat. Ann.  12A:2-309(3). The majority concludes that Tuscan may not have terminated the 1985 Contract until late 1990, when members of Tuscan management informed Ideal that the contract was "meaningless" and "not valid." See Majority Opinio n at 14. Under this interpretation, it would appear that an at-will
contract cannot be terminated under  12A:2-309(3) unless notification is express. I disagree. A party's co nduct may also terminate an at-will contract. See Lumber Enterpri ses, Inc. v. Hansen, 846 P.2d 1046, 1049-50 (Mont. 1993) ("when [the seller] unilaterally raised its prices, it . . . put an end to the previous contract between the parties"); Michael Ha lebian N.J., Inc. v. Roppe Rubber Corp., 718 F. Supp. 348, 365 ( D.N.J. 1989) (under U.C.C.  2-309, refusal to continue to supply goods in
accordance with the terms of an at-will contract te rminates the contract, not breaches it). Termination through co nduct may not provide the reasonable notice required by  12A:2-309(3), but failure to give reasonable notice does not mean the contract continues ad infinitum. Rather the aggrieved party is entitled to damages arising from the failure to give reasona ble notice. See Ronald A. Anderson, Uniform Commercial Code  2-309:27 at 555 (1982) ("When a contract is terminable at any time on notice and it is terminated without notice, the damages which the aggrieved party may recover are limited to those sustained du ring thenotice period.").

In this case, Tuscan's pricing diverged fr om the contractual provision in 1987 at the latest. Ideal knew it was being charged a greater amount than that called for by the contract and repeatedly complained. In response, T uscan clearly demonstrated--both by refusing to change its pricin g and through specific statements--that it would not comply with the 1985
Contract. Therefore the contract was terminated at that time. While Tuscan failed to provide Ideal with reasonabl e notification of termination, its consistent refusal to abide by the terms of the contract terminated the contract. Cf. Agway v. Ernst, 394 A.2d 774 (Maine 1978) (where buyer was unaware of c hanges in price made by seller, at-will contract was breached and not terminated). Ideal could have recovered damages fo r Tuscan's failure to provide reasonable notification, but it filed suit
after the statute of limitations had run. I would affirm the district court's entry of summary judgment on Ideal 's claim for

breach of contract.

III. Because Ideal's implied covenant of good f aith and
tortious interference with contract claims derive f rom its contract claim, I would grant summary judgment on t hose claims as

well.

IV. For the foregoing reasons, I respectfully dissent.