United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING
PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
N. Parrish United States District Court Judge
the court are Defendants Holcim (US), Inc. and Ash Grove
Cement Company's motion for summary judgment (Dkt. No.
79), and Plaintiff Cyrus Spurlino's cross-motion for
summary judgment (Dkt No. 117). The court held oral argument
on the motions on July 19, 2017.
issue is whether Spurlino has standing to bring a claim
arising under the Utah Unfair Practices Act. As explained
below, the court GRANTS Defendants' motion for summary
judgment and DENIES Spurlino's cross-motion for summary
Cyrus Spurlino (“Spurlino”) was the majority
shareholder (and later sole shareholder) of Westroc, Inc., a
company that produced, distributed and sold ready-mix
concrete and provided related services. Defendants are
suppliers of cement, a primary ingredient in concrete. From
at least 2008 through April 2013, Westroc, Inc. purchased
cement from Defendants for use in its production of concrete.
This lawsuit stems from Spurlino's allegation that
Defendants engaged in price discrimination by charging
Westroc, Inc. a higher price for cement than Defendants
charged other, larger concrete companies, in violation of the
Utah Unfair Practices Act, Utah Code §§ 13-5-1 et
seq. (the “UUPA”). Spurlino's requested
relief for the alleged pricing discrimination is “that
the complained discriminatory pricing practices engaged in by
Defendants be adjudged to be in violation of the Utah Unfair
Practices Act; that Defendants be held jointly and severally
liable therefor; and that Spurlino recover damages in an
amount proved and to be trebled as provided by law.”
(Dkt. No. 11, 21).
April 2013, non-party Kilgore Companies, LLC
(“Kilgore”) entered into a membership interest
purchase agreement (“MPA”) with Westroc, LLC,
Westroc Holdco, Inc. (“Holdco”),  the Cyrus W.
Spurlino Revocable Trust (the “Trust”), Cyrus W.
Spurlino, as Trustee of the Trust, as the sole shareholder of
Holdco, and as the former sole shareholder of Westroc, Inc.,
and Cyrus W. Spurlino, an individual. In preparation for
closing, Westroc, Inc. filed articles of conversion on March
29, 2013, converting itself from a Utah corporation into a
Utah limited liability company known as Westroc, LLC. The
parties closed on the MPA on April 1, 2013. Westroc, LLC
merged into Kilgore on April 2, 2013.
complaint alleges that he is bringing this action “as
the successor in interest to the claims of Westroc, Inc.,
vis-à-vis Westroc Holdco, Inc.” (Id. at
2). To that end, Spurlino alleges that Holdco succeeded to
certain antitrust claims (including the UUPA claim) from
Westroc, Inc. and that he is the assignee of any and all
claims owned by or accrued to Holdco pursuant to a Claims
Assignment dated August 8, 2013. Defendants argue
that Holdco never succeeded to any claims of Westroc, Inc.,
and therefore Holdco could not have assigned those claims to
Spurlino. Thus, Defendants argue that Spurlino lacks standing
to bring his UUPA claim. Spurlino maintains that he has
standing by virtue of the Claims Assignment because Holdco
did succeed to the claims owned by Westroc, Inc.
judgment is appropriate if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). When considering cross-motions for
summary judgment, the court is “entitled to assume that
no evidence needs to be considered other than that filed by
the parties, but summary judgment is nevertheless
inappropriate if disputes remain as to material facts.”
Atl. Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1148 (10th Cir. 2000) (citations omitted).
Further, the court must “construe the evidence and the
reasonable inferences drawn therefrom in the light most
favorable to the nonmovant.” Sally Beauty Co. v.
Beautyco, Inc., 304 F.3d 964, 972 (10th Cir. 2002)
(citation omitted); see also Water Pik, Inc. v. Med-Sys.,
Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (“The
nonmoving party is entitled to all reasonable inferences from
It is unlawful for any person engaged in commerce, in the
course of such commerce, either directly or indirectly, to
discriminate in price between different purchasers of
commodities of like grade and quality . . . where the effect
of such discrimination may be substantially to lessen
competition or tend to create a monopoly in any line of
commerce, or to injure, destroy, or prevent competition with
any person who either grants or knowingly receives the
benefit of such discrimination, or with customers of either
Utah Code § 13-5-3.
UUPA addresses standing to bring suit in § 13-5-14:
Any person or the state of Utah may maintain an action to
enjoin a continuance of any act in violation of this chapter,
and, if injured by the act, for the recovery of damages. If,
in such action, the court finds that the defendant is
violating or has violated any of the provisions of this
chapter, it shall enjoin the defendant from a continuance of
the violation. It is not necessary that actual damages to the
plaintiff be alleged or proved. In addition to such
injunctive relief, the plaintiff is entitled to recover from
the defendant three times the amount of the actual damages
sustained or $2, 000, whichever is greater, plus court costs.
Id. § 13-5-14.
argue that because Spurlino is not a purchaser of commodities
or a successor in interest to a purchaser of commodities, he
has not suffered an injury that grants him Article III
standing. Federal courts are limited to deciding actual cases
or controversies. U.S. Const. art. III, § 2. Thus, a
litigant must demonstrate that “he has suffered a
concrete and particularized injury that is fairly traceable
to the challenged conduct, and is likely ...