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Spurlino v. Holcim U.S. Inc.

United States District Court, D. Utah

August 1, 2017

CYRUS SPURLINO, an individual, Plaintiff,
HOLCIM U.S. INC., a Delaware corporation; ASH GROVE CEMENT COMPANY, a Delaware corporation; and JOHN DOES I-V; Defendants.


          Jill N. Parrish United States District Court Judge


         Before 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.

         At 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 judgment.


         Plaintiff 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).

         In April 2013, non-party Kilgore Companies, LLC (“Kilgore”) entered into a membership interest purchase agreement (“MPA”) with Westroc, LLC, [1] Westroc Holdco, Inc. (“Holdco”), [2] 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.

         Spurlino's 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[3] 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.


         Summary 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 the record.”).

         The UUPA provides:

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 of them.

Utah Code § 13-5-3.

         The 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.

         Defendants 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 ...

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