Full opinion text
OPINION AND ORDER LOVELL, District Judge. This action arises out of Conoco, Inc.’s decision to sell as a “package” its properties in the area of Bozeman, Montana, and the subsequent sale to the plaintiffs of a single station within that package. Plaintiffs (hereinafter also “Taggarts”), the owners and operators of the Four Corners Conoco station near Bozeman, filed suit in 1982 to recover damages from Conoco, Inc., and Continental Oil Company (hereinafter “Conoco”), and from Conoco jobber David S. Rutledge, for alleged federal antitrust violations as well as numerous alleged state law violations. Federal subject matter jurisdiction is invoked pursuant to sections 1 and 4 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 4, and section 4 of the Clayton Act, 15 U.S.C. § 15. Venue is properly placed within the District of Montana pursuant to section 12 of the Clayton Act, 15 U.S.C. § 22, and 28 U.S.C. § 1391(b) and (c). The matter is before the Court on all parties’ cross motions for summary judgment. FACTS In 1970, plaintiffs John and Bettie Taggart left their home in Illinois and traveled to Montana with the intent of starting a new business. In October, the Taggarts became lessee dealers of a Conoco station known as the “East Main Travel Shoppe” in Bozeman, Montana. In addition to Conoco gasoline products, the Taggarts sold retail convenience store items such as food, refreshments, beer, cigarettes, and souvenirs. Plaintiffs operated the East Main station until the Spring of 1977. On April 28, 1977, they executed a new Conoco Travel Shoppe Franchise Agreement and moved to the “Four Corners Conoco Travel Shoppe,” located approximately seven miles west of Bozeman, at the intersection of the highways to Big Sky Ski Resort and Yellowstone National Park. During this period of time, Conoco’s operation was structured so that all Conoco stations in Montana were owned by Conoco (or leased from third parties) and leased to dealers upon execution of franchise agreements. The franchise agreements prohibited dealers from selling any gasoline as Conoco branded gasoline, except gasoline purchased from Conoco. Conoco gasoline was distributed to the dealers through Conoco “commission agents,” who operated bulk plants owned or leased by Conoco. Commission agents derived their income by securing the business of customers (including retail stations, farmers, and various commercial accounts) and delivering Conoco products to those customers. Such agents were not salaried Conoco employees. David Rutledge commenced employment with Conoco in 1968 in Billings, Montana. From October 1, 1976 until September 30, 1977, Rutledge was a Conoco Sales Manager in Houston, Texas. In the summer of 1977, while vacationing in Montana, Rutledge learned that Conoco’s Bozeman commission agent had his agency for sale. Following discussions with the agent, Rutledge agreed to purchase the commission agency for $30,000. Effective October 1, 1977, Rutledge terminated his employment with Conoco and became the Bozeman commission agent. In January, 1978, the Bozeman area Conoco dealers were informed by letter that Conoco had decided to offer its Montana properties for sale in “packages.” This represented implementation in Montana and the Rocky Mountain region of Conoco’s MAAP program (Marketing At A Profit), under which Conoco had been selling its bulk plants and service stations throughout the United States since 1976. Initially, the MAAP program excluded the Northwestern Division, of which Montana was a part, except for certain properties in Nebraska and the Dakotas. Implementation of MAAP in Montana took the Taggarts by surprise because Conoco employees had told them in the past that Conoco would never sell its Montana properties. The letter received by the Taggarts in January 1978, was a form letter used by Conoco to explain to its dealers what the MAAP program involved. Essentially, MAAP consisted of the sale to a single person or entity of all Conoco properties in a given area, including both service stations and bulk plants. The purchaser of the entire package would then become a “jobber” for Conoco, operating out of the bulk plant. Commission agencies were eliminated. Each Conoco dealer (“incumbent”) affected by the package sale was given an opportunity to bid on the package. Conoco personnel traveled to Bozeman in mid-January 1978, to explain the procedures to its area dealers. Several Conoco employees visited the Taggarts at their station to inform them of the MAAP process. Although the parties disagree as to the detail in which the process was explained to plaintiffs, it is undisputed that the Taggarts were told that Conoco’s asking price for the Bozeman package was $598,000, plus estimated inventory and accounts receivable of $170,-000, or a total of $768,000. All dealers were told that if they wanted additional information on the package they were to submit a signed form to Conoco, upon receipt of which Conoco would provide the information. The Taggarts were informed that the Bozeman package would be sold in its entirety to one person or entity, and that unwanted properties could not be deleted from the package. The Taggarts, interested primarily in keeping their own station, discussed the package sale with other Bozeman Conoco dealers, including David and Janette Rutledge. Rutledge informed the other area dealers that he intended to bid on the package and, if successful, would sell individual stations to the other dealers. During this time, friction developed between the Taggarts and Rutledge. At one point, Rutledge informed the Taggarts that he would not sell or lease their station to them if he purchased the package. Afraid of losing their station, the Taggarts considered bidding for the Bozeman properties. They discussed the package with Conoco personnel, and told at least one Conoco employee that they intended to bid one dollar over Conoco’s asking price. The Taggarts were then advised to attempt to make a mutually agreeable arrangement with Rutledge. Rutledge received similar advice from Conoco. On April 5, 1978, the Taggarts and Rut-ledges executed an Option to Purchase Agreement. Under the terms of this agreement, Rutledge offered to sell the Four Corners station to the Taggarts for $89,000 in consideration for the Taggarts’ agreement to refrain from bidding on the package. The agreement was made conditional upon acceptance of Rutledge’s bid by Conoco. By letter dated April 14, 1978, Rutledge submitted a bid of $448,235 for the Bozeman package. Conoco rejected the bid as low, and informed Rutledge he could submit a higher bid. Rutledge was further instructed to delete his bid on a vacant lot owned by Conoco which was not part of the package. Rutledge submitted a revised bid on April 29, 1979, in the amount of $508,000, plus a separate offer of $35,200 for the vacant lot. This bid was accepted. Before closing, Rutledge negotiated a reduction in the purchase price by $29,000, attributable to a potential claim against Rutledge and Conoco asserted by a former station lessee. The purchase price was thus reduced to $514,200. Shortly prior to closing, Rutledge learned that one of the station lessees who planned to purchase his station from Rutledge had been denied $40,000 financing. Without the $40,000, Rutledge would have been unable to proceed to close the deal with Conoco. Conoco thus agreed to retain title to the parcel represented by the $40,000 shortfall—a parking lot adjacent to the station—and had Rutledge execute a promissory note in that amount. Conoco subsequently sold the parking lot to a third party, and released Rutledge from the note. The Taggarts did not submit a bid on the Bozeman package, nor were they aware (at the time) of the above-referenced changes negotiated by Rutledge. On October 12, 1978, the Taggarts and Rutledges entered into a written agreement (hereinafter referred to as the Supply Agreement). Under the terms of this agreement, in consideration for the transfer of Rutledge’s interest in the Four Corners station to the Taggarts, the Taggarts agree to purchase all gasoline sold from Four Corners exclusively from Rutledge. The Supply Agreement further provides that the gasoline will be purchased at the price charged by Rutledge to other stations in the area, with cash payment to be made within 24 hours of delivery and receipt of invoice. Rutledge agreeds to pay the Taggarts $10.00 monthly pump rental in addition to a rebate of one cent per gallon of gasoline the Taggarts purchase from Rutledge. The agreement carries a term of five years, and gives Rutledge the exclusive right to terminate it upon 30 days’ notice and to renew it for additional periods of five years, not to exceed 15 years in aggregate. Under the Supply Agreement, the Taggarts are given the right' to purchase gasoline from other suppliers in the event that Rutledge is unable to meet their demand. The Taggarts are also entitled to a pro rata share of Rutledge’s allocation of gasoline from Conoco, and allowed to terminate the agreement if Rutledge fails to provide such pro rata share. Finally, the Supply Agreement gives Rutledge a right of first refusal in the event the Taggarts desire to sell the property. The Supply Agreement, by its terms, was to be recorded in the office of the Gallatin County Clerk and Recorder. Pursuant to the Option to Purchase and Supply Agreements, Rutledge sold the Four Corners station to the Taggarts for $89,000, and they continue to operate it at a profit. Rutledge continues to operate the Bozeman bulk plant through David Rutledge Distributing, and also operates at the retail level through his other Bozeman stations. On October 2, 1980, David and Janette Rutledge instituted a civil action against the Taggarts in the District Court of the Eighteenth Judicial District of the State of Montana, in and for the County of Gallatin. The complaint alleged that the Taggarts had purchased gasoline from suppliers other than Rutledge, in breach of the Supply Agreement, and that the Taggarts had, on several occasions, failed to remit payment within twenty-four hours of delivery and receipt of invoice, as required by the Supply Agreement. The Taggarts filed an answer on December 22, 1980, setting forth a general denial, and on January 21, 1981, the action was dismissed with prejudice by stipulation of the parties, as fully settled upon the merits. LITIGATION BACKGROUND This action was commenced October 4, 1982. The complaint alleges violations of the Sherman Antitrust Act, 15 U.S.C. §§ 1-7, and state law claims of fraudulent misrepresentation, actual fraud and undue influence, price-fixing in violation of the Montana Unfair Trade Practices and Consumer Protection Act, §§ 30-14-201, et seq., and impossibility of performance of the Supply Agreement. The complaint prays for treble damages under state and federal antitrust laws and actual damages under the other state claims or, in the alternative, a declaratory judgment that the Supply Agreement is illegal and void as a matter of law. Plaintiffs move for summary judgment as to liability only on Counts One through Four or for judgment declaring the subject agreement null and void. Plaintiffs claim the following antitrust violations: 1. Conoco’s MAAP program violated section 1 of the Sherman Act, 15 U.S.C. § 1, because it concentrated many competitive dealers into one, thereby reducing competition. In support of this contention, plaintiffs assert that since only three major oil companies continue to do business in Bozeman, any attempt by Conoco to further concentrate the market must be viewed as monopolistic in nature and given antitrust scrutiny. Additionally, plaintiffs assert that the package sale process violated section 1 because, although they were not prevented form bidding, the ultimate package sold to Rutledge was materially different from the package offered by Conoco. Plaintiffs maintain that Conoco maneuvered Rutledge into position to become the Bozeman area jobber, thereby precluding them from competing for the position. 2. The Supply Agreement violates section 3 of the Clayton Act, 15 U.S.C. § 14, as an unlawful requirements contract, because it forecloses a substantial amount of competition in the relevant market. 3. The Supply Agreement constitutes a price-fixing agreement, per se unlawful under section 1 of the Sherman Act, because the contract allows Rutledge to fix the minimum price at which the Taggarts can sell gasoline. 4. The Supply Agreement constitutes a contract in restraint of trade in violation of section 1 of the Sherman Act. 5. The defendants have unlawfully engaged in an attempt to monopolize the gasoline market in Bozeman, evidenced by a specific intent to control prices and to destroy competition in interstate commerce, in violation of section 2 of the Sherman Act. In support of this contention, plaintiffs claim that Rutledge has sold gasoline at retail at a price less than his wholesale price to the plaintiffs, which constitutes predatory pricing. 6. The Supply Agreement results in unlawful price discrimination in violation of section 2 of the Clayton Act, as amended by the Robinson-Patman Price Discrimination Act, 15 U.S.C. § 13, in that: Rutledge gives the Taggarts a rebate of one cent per gallon and another retailer two cents per gallon; Rutledge requires plaintiffs to pay cash for their purchases, although credit is extended to others; and Rutledge sells gasoline to plaintiffs’ competitors at a lower price than that he charges plaintiffs. 7. The Supply Agreement was unlawfully “tied in” to the sale of the Four Corners station, in violation of section 1 of the Sherman Act. Plaintiffs assert that Rutledge coerced them into accepting the Supply Agreement by threatening to refuse to sell them their station unless they accepted his terms. Defendants each move for summary judgment on the ground that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Rutledge raises the defense of res judicata, claiming that plaintiffs are barred from raising any claims which should have been brought in the prior state action. Rutledge further asserts that plaintiffs’ price-fixing claims are specious because there is no agreement between any of the parties to fix resale prices, and that the RobinsonPatman Act claims must fail because the requisite interstate transaction is missing. Conoco claims entitlement to summary judgment on the following grounds: 1. Conoco’s actions in offering and selling the Bozeman properties as a package reflected unilateral decisions based on legitimate business reasons, and thus as a matter of law cannot have any antitrust implications. 2. Plaintiffs’ price-fixing allegations must fail as a matter of law because no evidence has been produced tending to show any vertical or horizontal price-fixing. 3. Plaintiffs have offered no evidence of restraint of trade in any relevant market by any defendant, and no evidence as to their actual damages, and therefore Conoco is entitled to judgment as a matter of law on the Sherman Act, section 1, claims. 4. Plaintiffs’ claims under section 2 of the Sherman Act also must fail for the reasons that no evidence has been offered to show a conspiracy between the defendants to destroy competition or to control prices. 5. The exclusive supply contract between the Taggarts and Rutledges has no effect on competition and therefore, as a matter of law, violates no federal antitrust statute. 6. Because all sales and purchases of gasoline products between the Rutledges and Taggarts occurred within the state of Montana, the “transaction in commerce” requirement of the Robinson-Patman Act has not been met and there can be no price discrimination as a matter of law. 7. The four-year statute of limitations for bringing an antitrust action bars plaintiffs’ claims under the federal antitrust laws. DISCUSSION 1. Res Judicata Defendant Rutledge asserts that plaintiffs’ complaint is barred by the doctrine of res judicata on the ground that the claims against Rutledge brought in this action could have been raised in the 1980 state action brought by Rutledge to enforce the supply agreement. Principles of res judicata have their origin in the full faith and credit clause of the United States Constitution. Pursuant to the authority granted therein, Congress enacted the predecessor of 28 U.S.C. § 1738, under which federal courts generally are required to give preclusive effect to prior state court judgments. Mills v. Duryee, 11 U.S. (7 Cranch) 481, 3 L.Ed. 411 (1813); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). The Supreme Court has held that section 1738 requires federal courts to give preclusive effect to a state court judgment whenever the courts in the state from which the judgment emerged would do so. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Res judicata concepts will not apply, however, when the party against whom the earlier decision is asserted did not have a full and fair opportunity to litigate the issue in question in the earlier case. Id. at 95, 101 S.Ct. at 415. Plaintiffs maintain that they have not had a “full and fair opportunity” to litigate the issues raised herein, since the only issues in the state case were whether the Taggarts purchased gasoline from another dealer and the resulting damage to Rutledge, and the action was dismissed by stipulation of the parties. Plaintiffs therefore argue that the legality of the contract was neither raised nor determined and that the resulting judgment cannot have any preclusive effect. Res judicata principles embody two concepts. “Issue preclusion” refers to the preclusive effect of a judgment in foreclosing litigation of a matter that has been litigated and decided. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 376 n. 1, 105 S.Ct. 1327, 1329 n. 1, 84 L.Ed.2d 274, 278 n. 1 (1985). In contrast, “claim preclusion” refers to the preclusive effect of a judgment in foreclosing litigation of matters that should have been raised in an earlier suit. Id. Under section 1738, this Court must refer to the preclusion law of the State of Montana to determine the effect on this action of the prior state judgment. Allen, 449 U.S. at 96, 101 S.Ct. at 415; Marrese, 470 U.S. at 379, 105 S.Ct. at 1331, 84 L.Ed.2d at 281. The Court in Marrese noted that “claim preclusion generally does not apply where ‘[t]he plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy because of the limitations on the subject matter jurisdiction of the courts____’” Id. at 382, 105 S.Ct. at 1333, 84 L.Ed.2d at 282 (citation omitted). The Court thus declined to adopt a reading of section 1738 that would allow a plaintiff to bring state law claims initially in state court only at the cost of foregoing subsequent federal antitrust claims. Id. at 385, 105 S.Ct. at 1335, 84 L.Ed.2d at 285. Applying Marrese in conjunction with California preclusion law, the Ninth Circuit Court of Appeals held that a federal antitrust plaintiff was not precluded from bringing a federal action when the state court in a prior action had no jurisdiction to hear the federal claims. Eichman v. Fotomat Corp., 759 F.2d 1434, 1436 (9th Cir. 1985). The court observed that California law requires jurisdictional competency for a judgment to have preclusive effect. Id. On this basis, the court concluded that plaintiffs federal antitrust claims could not be barred by res judicata, but that the pendent state claims based on conduct occurring prior to the date of judgment in the state action were precluded. Id. at 1438. Montana appears to follow the rule of jurisdictional competency as well: The doctrine of res judicata states that a final judgment on the merits by a court of competent jurisdiction is conclusive as to causes of action or issues thereby, as to the parties and their privies, in all other actions in the same or any other judicial tribunal [of] concurrent jurisdiction. Wellman v. Wellman, — Mont. —, —, 668 P.2d 1060, 1061 (1983) (quoting Meagher County Water Dist. v. Walter, 169 Mont. 358, 361, 547 P.2d 850, 852 (1976)) (emphasis added). This language indicates the Montana Supreme Court’s adherence to the principles expressed in Marrese, namely, that a judgment will have no preclusive effect on claims outside the court’s jurisdiction. Therefore, applying Montana preclusion law within the framework of Eichman and Marrese, the Court concludes that plaintiffs’ federal antitrust claims are not barred under the doctrine of res judicata by the judgment entered in state district court in 1981. The remaining claims raised in the amended complaint are pendent claims based upon state law. Count Two alleges fraudulent misrepresentation against defendants Rutledge and Conoco, arising out of both the bidding process for the Bozeman package and earlier dealings between the parties. Count Three alleges fraud, collusion and undue influence against the defendants generally based upon the same course of dealing. Under Count Four of the amended complaint, plaintiffs allege that Rutledge’s practices under the supply agreement constitute price-fixing in violation of Montana law, and that his purpose in purchasing the Bozeman package was to fix the price of gasoline in the relevant market. Finally, in Count Five, plaintiffs allege that impossibility of performance and illegality of purpose render the supply agreement void. The issue before the Court is whether any or all of these pendent state claims are barred under Montana preclusion law. Montana historically has followed a four-pronged test for application of res judicata principles to a subsequent action: (1) the parties or their privies must be the same; (2) the subject matter of the action must be the same; (3) the issues must be the same, and relate to the same subject matter; and (4) the capacities of the persons must be the same in reference to the subject matter and to the issues between them. Sullivan v. School District No. 1, 100 Mont. 468, 472, 50 P.2d 252 (1935); Brannon v. Lewis and Clark County, 143 Mont. 200, 387 P.2d 706 (1963). Although the Montana Supreme Court recently has harkened back to this test as the standard for res judicata, Fox v. 7 L Bar Ranch Co., 198 Mont. 201, 645 P.2d 929 (1982), it appears to have done so only in the context of issue preclusion. Montana Power Co. v. Public Service Commission, — Mont. —, 692 P.2d 432 (1984). The Montana court has recognized the distinction between claim preclusion and issue preclusion, though not always articulating the precise definitions thereof. See, e.g., Aetna Life and Cas. Ins. Co. v. Johnson, — Mont. —, 673 P.2d 1277, 1280 (1984) (“Collateral estoppel involves preclusion of issues previously litigated and res judicata is preclusion of claims that have been litigated.”). When directly confronted with the issue, however, the court clearly has followed the general rule governing claim preclusion. As early as 1935, the court recognized that a judgment is “binding and conclusive between all the parties to the suit and their privies and successors in interest, as to all matters adjudicated therein and as to all issues which could have been properly raised, irrespective of whether the particular matter was in fact litigated.” Kramer v. Deer Lodge Farms Co., 116 Mont. 152, 156, 151 P.2d 483, 484 (1935). Recently, the court stated: “It is well settled that a judgment or order is conclusive as to all matters which could have been litigated under the issues raised by the original pleadings.” Matter of Estate of Pegg, — Mont. —, 680 P.2d 316, 320 (1984). See also O’Neal, Booth & Wilkes, P.A. v. Andrews, — Mont. —, 712 P.2d 1327, 1329 (1986) (“ ‘Once there has been full opportunity to present an issue for judicial decision in a given proceeding ... the determination of the court in that proceeding must be accorded finality as to all issues raised or which fairly could have been raised, else judgments might be attacked piecemeal and without end.’ ” (citation omitted.)). Drawing from Montana case law, it seems evident that state law applies traditional principles of res judicata and collateral estoppel in determining whether a subsequent action is precluded. The most important task in framing the vocabulary of res judicata is to distinguish clearly between two very different effects of judgments. The first is the effect of foreclosing any litigation of matters that never have been litigated, because of a determination that they should have been advanced in an earlier suit. The second is the effect of foreclosing relitigation of matters that have once been litigated and decided. 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4402 at 42. Plaintiffs appear to recognize only the latter effect of the 1981 judgment by arguing that the contract’s legality was neither raised nor determined. Under principles of claim preclusion, the Court’ examination clearly must look further than to what was actually determined in the prior suit. It is argued that the prior action has no preclusive effect because its dismissal was mutually requested by the parties without any matters having been litigated and decided. Thus, plaintiffs submit, they never had a full and fair opportunity to litigate the claims now presented. The Supreme Court of Montana, addressing the preclusive effects of a prior stipulation, has reached differing results. In Smith v. Baxter, 148 Mont. 291, 419 P.2d 752 (1966), the court gave preclusive effect to a stipulated dismissal upon subsequent administrative proceedings. It was there held that a prior stipulation with prejudice in compromise of litigation in state district court, as fully and finally settled on the merits, bars a subsequent adversarial administrative proceeding where the same parties, subject matter, and prayer for relief are involved in both matters. Id., 419 P.2d at 754. Following the same line of reasoning, the court held that dismissal of one defendant by stipulation was res judicata as to other defendants whose alleged liability was premised upon respondeat superior. State ex rel. City of Havre v. District Court, 187 Mont. 181, 609 P.2d 275, cert. denied sub nom., Boucher v. City of Havre, 449 U.S. 875, 101 S.Ct. 219, 66 L.Ed.2d 97 (1980). The court reasoned that “a stipulation of dismissal with prejudice of a defendant is tantamount to a judgment on the merits; and accordingly, such a dismissal with prejudice is res judicata as to every issue reasonably raised by the pleadings____ The Court will look at the dismissal with prejudice on its face, and will not look behind the words ‘with prejudice. Id., 609 P.2d at 278. A contrary result was reached in Hughes v. Salo, 203 Mont. 52, 659 P.2d 270 (1983), in which the court held that an action to enforce a foreign judgment was not res judicata as to a subsequent action on the merits of the underlying obligation. Distinguishing City of Havre, the court stated that where “neither the pleadings ..., nor the stipulations and accompanying dismissal with prejudice, made reference to or ‘reasonably raised’ any issue regarding the merits [of the subsequent litigation,]” res judicata concepts were not applicable. Id., 659 P.2d at 274. Defendant Rutledge’s state court action against the Taggarts was, in essence, an action to enforce the contract between them. The stipulation for dismissal of that action was “tantamount to a judgment on the merits.” City of Havre, 609 P.2d at 278. See also Bloomer Shippers Assn. v. Illinois Central Gulf Railroad Co., 655 F.2d 772 (7th Cir.1981). Accordingly, the Taggarts cannot now be heard on issues reasonably raised or which could have been raised during that proceeding. The crux of the inquiry, then, is whether any or all of Taggarts’ pendent state claims should have been raised in the prior action. Under the Montana Rules of Civil Procedure, a defendant in a civil action is required to set forth as a counterclaim any existing claim against the plaintiff “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim____” Rule 13(a), Mont.R. Civ.P. The purpose of Rule 13(a) is “to bring all logically related claims into a single litigation, thereby avoiding a multiplicity of suits.” Julian v. Mattson, — Mont. —, 710 P.2d 707, 709 (1985), (citing 20 Am.Jur.2d Counterclaim, Recoupment, Etc. § 15). The Supreme Court of Montana has given strict interpretation to Rule 13(a), applying it to bar claims which should have been raised as compulsory counterclaims in a prior action. For example, in O’Neal, Booth & Wilkes, P.A. v. Andrews, supra, the plaintiff had sued the defendant in Florida state court seeking payment of attorneys’ fees. Judgment was entered in plaintiff’s favor for the sum of $3,229.63. Subsequently, plaintiff initiated suit in Montana to recover the balance due from defendant. The defendant then asserted a counterclaim, alleging claims of breach of fiduciary duty, fraud, coercion and others. Affirming summary judgment in favor of the plaintiff, the Montana Supreme Court held that the counterclaim was barred by the doctrine of res judicata since it arose out of the same transaction that was at issue in the Florida litigation and should have been raised therein as a compulsory counterclaim. 712 P.2d at 1329. A similar result was reached in Robinson v. First Security Bank of Big Timber, — Mont. —, 728 P.2d 428 (1986), in which a 1982 consent judgment was held to preclude the plaintiffs’ subsequent complaint which should have been raised as a compulsory counterclaim to the prior suit. Observing that “a compromise agreement, when the basis for a final judgment, operates ‘as a merger and bar[s] all pre-existing claims and causes of action,’ ” the court held that the dismissal of the first action concluded all pre-existing claims between the parties and that plaintiffs’ claims in the second suit were thus barred by res judicata. Id., 728 P.2d at 430 (quoting Webb v. First National Bank of Hinsdale, — Mont. -, 711 P.2d 1352, 1355 (1985)). In order for Rule 13(a) to give preclusive effect to a prior judgment, the claims raised in the subsequent action must arise out of the same transaction or occurrence that formed the subject matter of the prior suit. Julian v. Mattson, 710 P.2d at 709. The court in Julian defined “transaction” in the following manner: that combination of acts and events, circumstances and defaults, which viewed in one aspect, results in the plaintiff’s right of action, and viewed in another aspect, results in the defendant’s right of action ..., and it applies to any dealings of the parties resulting in wrong, without regard to whether the wrong be done by violence, neglect, or breach of contract. Id. at 710 (quoting Scott v. Waggoner, 48 Mont. 536, 545, 139 P. 454, 456 (1914)). Simply stated, the issue is whether the claims raised in the subsequent action are “logically related” to those raised in the first action by the opposing party. See USM Corp. v. SPS Technologies, Inc., 102 F.R.D. 167, 170 (N.D.Ill.1984); Springs v. First National Bank of Cut Bank, 647 F.Supp. 1394 (D.Mont.1986). Here, the Court concludes that the allegations raised in Counts IV and V of the Taggarts’ complaint arose out of the same transaction as the Rutledges’ 1980 state litigation and should have been raised therein as compulsory counterclaims under Rule 13(a). The “transaction” at issue in both cases was the execution of the October 1978 Supply Agreement between the Taggarts and Rutledges. The claims are “logically related” because Rutledge filed suit to enforce the provisions of the agreement, and Taggarts’ claims in Counts IV and V of the complaint challenge the validity and enforceability of those provisions. Any claims plaintiffs had as to the legality of the contract or to the enforceability of certain provisions thereof were compulsory counterclaims within the meaning of Mont. R.Civ.P. 13(a) and are barred by res judicata from being raised in this action. The allegations contained in Counts II and III of the complaint cannot be barred by principles of res judicata or under Rule 13(a). Counts II and III assert claims against Conoco, which was not a party to the state litigation, and broaden the relevant transaction considerably, to include events other than the negotiation and execution of the Supply Agreement. In contrast to Counts IV and V, the claims raised in Counts II and III do not go to the contract itself or to its application, but complain of actions occurring prior to the parties’ execution of the agreement. Therefore, Counts IV and V of the Taggarts’ complaint will be dismissed as barred by the doctrine of claim preclusion. II. Antitrust Issues The parties have cross motions for summary judgment as to each of the plaintiffs’ federal antitrust claims. Under Fed.R. Civ.P. 56(c), summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. “A ‘material’ fact is one that is relevant to an element of claim or defense and [the] existence [of which] might affect the outcome of the suit.” T. W. Electrical Service Inc. v. Pacific Electrical Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987). The Supreme Court has indicated “that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles.” Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). The law of the Ninth Circuit, however, is that Poller “merely teaches caution” and does not preclude summary judgment in antitrust actions where appropriate. Barry v. Blue Cross of California, 805 F.2d 866, 871 (9th Cir.1986) (quoting Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680 (9th Cir.1985)). Generally, summary judgment is appropriate in antitrust cases when there is no “significant probative evidence tending to support the complaint.” Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403, 1406 (9th Cir. 1984). The moving party has the initial burden of proving the absence of factual issues. However, once this burden is met, the opposing party must come forward with “sufficient probative evidence” tending to support his claim or defense. See Richards v. Nelson Freight Lines, 810 F.2d 898, 902 (9th Cir.1987), and cases cited therein. In Sherman Act section 1 cases, “a moving defendant may meet its burden by proffering ‘an entirely plausible and justifiable explanation of [its] conduct’ that is ‘consistent with proper business practices.’ ” Barnes, 759 F.2d at 680 (quoting Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 672 (9th Cir.1980)). The plaintiff must respond with “more than mere hearsay and legal conclusions.” Kaiser Cement Corp. v. Fishback & Moore, Inc., 793 F.2d 1100, 1104 (9th Cir.1986). In the absence of a genuine issue of material fact, if the plaintiff “ ‘does not present a record sufficient to support a reasonable finding in his favor, a district court has a duty to grant the motion for summary judgment.’ ” O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir.1986) (quoting Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1260 (9th Cir.), cert. dismissed, 464 U.S. 956, 104 S.Ct. 385, 78 L.Ed.2d 331 (1983)). To prevail in their claims, the Taggarts “must establish a violation of the antitrust laws and an actual injury attributable to something the antitrust laws were designed to prevent.” Kaiser Cement, 793 F.2d at 1104. Defendants’ burden is to show that plaintiffs have raised no material factual issues which could be resolved by a trier of fact in plaintiffs’ favor. Plaintiffs are entitled to have reasonable inferences drawn in their favor, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986), but—once defendants have met their burden—cannot defeat summary judgment without presenting “specific facts showing that there is a genuine issue for trial.” Rule 56(e), Fed.R.Civ.P. Thus, the court’s ultimate inquiry is to determine whether the “specific facts” set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence. T.W. Electrical Service, 809 F.2d at 631 (citing Anderson v. Liberty Lobby, Inc., — U.S. -, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986)). With these considerations in mind, the Court turns to the substance of the parties’ motions. A. Package Sale Plaintiffs claim that the decision of Conoco to sell its Bozeman properties as a package violated section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, because the effect was to condense many competitive dealers into one, thereby reducing competition. Plaintiffs complain that only three major oil companies continue to do business in the Bozeman area and that the attempt by one to further concentrate the market must be viewed as monopolistic in nature and given antitrust scrutiny. Plaintiffs further assert that the Bozeman package sale was the result of a conspiracy between Conoco and Rutledge to place Rutledge in a position to control the Bozeman gasoline market. They claim that Conoco manipulated the bidding process to guarantee Rutledge’s success, and that Conoco thereafter ensured that Rutledge retained sufficient economic leverage over the local station operators to appreciably restrain competition in the supply and sale of gasoline by Conoco dealers in the area. Conoco asserts that its decision was unilateral and made for legitimate business reasons and thus, as a matter of law, the package sale did not violate any antitrust laws. Section 1 of the Sherman Act prohibits “[ejvery contract, combination ..., or conspiracy in restraint of trade or commerce----” 15 U.S.C. § 1. To establish a section 1 violation, an antitrust claimant must prove three elements: (1) an agreement or conspiracy, (2) resulting in an unreasonable restraint of trade, and (3) causing “antitrust injury.” Rickards v. Canine Eye Registration Foundation, 783 F.2d 1329, 1332 (9th Cir.), cert. denied, — U.S. -, 107 S.Ct. 180, 92 L.Ed.2d 115 (1986). It is well established that independent action by a single manufacturer or seller of a product cannot give rise to a section 1 violation. United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). “A manufacturer of course generally has a right to deal, or refuse to deal, with whomever it likes, so long as it does so independently.” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775, reh’g denied, 466 U.S. 994, 104 S.Ct. 2378, 80 L.Ed.2d 850 (1984). Accord Airweld, Inc. v. Airco, Inc., 742 F.2d 1184, 1191 (9th Cir.1984), cert. denied, 469 U.S. 1213, 105 S.Ct. 1184, 84 L.Ed.2d 331 (1985). Numerous antitrust cases have arisen out of the termination of distributors or dealerships. Uniformly the courts refuse to find antitrust implications if the termination reflected the unilateral decision of the manufacturer. See Sierra Wine and Liquor Co. v. Heublein, Inc., 626 F.2d 129, 133 (9th Cir.1980); Sadler v. Rexair, Inc., 612 F.Supp. 491, 493 (D.Mont.1985) (“It is not an antitrust violation for a manufacturer to change distributors even if the affect [sic] is to seriously damage the former distributor’s business.”); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir.1969), cert. denied sub. nom., Hawaiian Oke & Liquors, Ltd. v. Joseph E. Seagram & Sons, Inc., 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970). Plaintiffs assert that the Bozeman sale was not merely a unilateral decision by Conoco to reduce the number of distributors. Rather, they assert, the sale was the product of a conspiracy between Conoco and Rutledge to reduce competition. A similar argument was made in Aladdin Oil Co. v. Texaco, Inc., 603 F.2d 1107 (5th Cir.1979). There, Service Oil Company, a long-time Texaco distributor in the Waco, Texas, area, decided to sell its assets and go out of the petroleum business. Plaintiff, interested in acquiring the distributorship, began negotiating with Service Oil. Any sale was subject to approval by Texaco, which retained a purchase option. Texaco determined that it should assign its purchase option to Poweram Oil, which already distributed Texaco products in the area. Poweram exercised the option and purchased the assets and properties of Service Oil. Plaintiff sued, alleging that Texaco and Poweram conspired to exclude it from the market to accomplish suppression of intrabrand competition and retail price maintenance. The court ruled that the case involved nothing more than a wholly unilateral refusal to deal by a seller (Texaco) and the choice of one replacement dealer (Power-am) instead of another potential replacement dealer (Aladdin) based on legitimate reasons. Id. at 1112. Recognizing that the conduct of Texaco and Poweram had to be examined together to determine whether any antitrust violation occurred, the court stated that such joint conduct, without more, does not violate the antitrust laws. Id. at 1114 (citing Joseph E. Seagram & Sons, 416 F.2d at 78). Thus, the court reasoned, Texaco's assignment of the purchase option to Poweram and simultaneous refusal to grant Aladdin a distributorship were unilateral decisions protected by the Colgate doctrine. Id. at 1115. The court inquired further, however, examining Aladdin’s contention that Texaco’s refusal to deal produced an unreasonable restraint of trade because it was designed to lessen intrabrand competition. Finding no evidence to support this argument, the court rejected it as “inartful speculation.” Id. at 1116. See also Carlo C. Gelardi Corp. v. Miller Brewing Co., 502 F.Supp. 637, 642 (D.N.J.1980) (“ ‘[I]t is indisputable that a single manufacturer or seller can ordinarily stop doing business with A and transfer his business to B and that such a transfer is valid even though B may have solicited the transfer and even though the seller and B may have agreed prior to the seller’s termination of A.’ ” (quoting Ark Dental Supply Co. v. Cavitron Corp., 461 F.2d 1093, 1094 (3d Cir.1972)). Here, Conoco points to deposition testimony of its representatives in support of its argument that the package sale was a unilateral decision based on legitimate business objectives. Conoco’s 1976 studies of its marketing practices concluded that its system was no longer profitable, and it developed the MAAP program in an effort to obtain a better return on its investments. In late 1977, Conoco determined it would extend the plan to its Rocky Mountain properties. Conoco states that package sales were utilized in order to “simplify the disposal of assets in a time frame that was manageable by selling them in clusters,” and to design packages “that would be logistically or financially sound for a jobbef- to operate.” (Conoco Statement of Fact No. 61.) Plaintiffs maintain that the package system was designed to broaden the range of prospective buyers and to secure sales to existing commission agents. (Plaintiffs’ Statement of Facts at p. 5.) The evidence shows that Conoco had legitimate business reasons for implementing the MAAP program. Plaintiffs do not dispute these reasons, nor have they presented any evidence that MAAP was the product of anticompetitive motives or had anti-competitive effects. The unilateral decision of a single manufacturer to rearrange its distribution structure by limiting or increasing the number of its dealers or transferring its business to different dealers does not violate the Sherman Act. Seabord Supply Co. v. Congoleum Corporation, et al., 770 F.2d 367, 374 (3d Cir. 1985). Plaintiffs argue, however, that even if the MAAP System itself has no antitrust consequences, its application to the Bozeman situation violated the Sherman Act because of the alleged conspiracy between Conoco and Rutledge to guarantee that Rutledge was the successful bidder. Plaintiffs assert that Rutledge was given information about the package that was not available to them, and that the package as sold was different than the package advertised. In essence, plaintiffs’ complaint is that the bidding process was a sham and that Conoco never intended to allow any potential purchaser other than Rutledge to prevail. The evidence before the Court shows that plaintiffs never actively negotiated with Conoco for purchase of the Bozeman package, and never even submitted a bid. Rutledge, on the other hand, eagerly pursued the purchase of the properties and made serious investigation before submitting his bid. His initial bid was rejected; however, since he was the only bidder, Conoco negotiated with him to reach an acceptable bargain. Plaintiffs have produced no “specific facts” from which a reasonable inference could be drawn that Conoco and Rutledge conspired to exclude them from the bidding process. Moreover, plaintiffs have cited no support for their position that the bidding practices in which they speculate Conoco and Rutledge were engaged violated section 1 of the Sherman Act. At least one court has held to the contrary. In Sitkin Smelting and Refining Co. v. FMC Corp., 575 F.2d 440 (3d Cir.), cert. denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176 (1978), the court ruled that the plaintiff’s allegations of sham bidding did not give rise to a Sherman Act antitrust action. There, the plaintiff and a third party had both bid on the defendant's properties. Plaintiff alleged that the other party was allowed to submit a higher bid after it learned of plaintiff’s bid and that the higher bid was then accepted. The court characterized plaintiff’s definition of sham bidding “in the sense that one bidder was preordained to obtain the contract if that bidder would match the high bid submitted.” Id., 575 F.2d at 445. The court first rejected the idea that the mere existence of such “sham bidding” was per se violative of the Sherman Act. Id. at 447. It then went on to consider the practice under the “rule of reason” analysis— that is, whether its purpose and effect imposed an undue restraint on commerce. The court found that plaintiff had produced no evidence of any anticompetitive purpose or effect in the relevant market. Id. Absent such evidence, the court concluded, the bidding practice alone was insufficient to sustain an antitrust violation. All but one of the bidders were destined to come up “empty-handed” with or without the sham bidding. The agreement gave a preference to Krentzman. A manufacturer or trader, however, is free to choose the customers to whom it wishes to sell so long as its conduct has no market control or monopolistic purpose or effect. [Citations omitted.] Defendant’s right to exercise this free choice is not limited because of the “sham” and the “sham” does not render the exercise of the choice a violation of the Sherman Act. Conduct not within the Act is not made into an antitrust violation by accompanying conduct which is reprehensible under some moral or ethical standard or even illegal under some other law. Id. In this case, plaintiffs rely only on their suspicions and “feelings” to support their conclusion that an illegal conspiracy existed between Conoco and Rutledge with respect to the package sale. “[C]onduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. ... To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of § 1 must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently.” Matsushita Elec. Indus. Co. v. Zenith Radio, — U.S.-, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986) (quoting Monsanto, 465 U.S. at 764, 104 S.Ct. at 1470). The only evidence in the record before the Court is that Conoco acted independently both in its decision to sell the Montana properties and in its decision to sell the Bozeman package to Rutledge. B. Attempted Monopoly Plaintiffs accuse Conoco and Rutledge of attempting to monopolize the Conoco operation in the Bozeman area, and assert that Conoco, by placing significant control of its Bozeman properties in the hands of Rutledge, has attempted to restrain competition in an already limited market. Most of the facts on which plaintiffs’ attempted monopoly claims are grounded arise out of the same actions and events discussed in the preceding section. Here, however, plaintiffs assert a violation of section 2 of the Sherman Act, 15 U.S.C. § 2, and the Court must proceed under a different analysis. A successful claim of attempt to monopolize requires proof of three interrelated elements: (1) A specific intent to control prices or destroy competition in some part of commerce; (2) Predatory or anticompetitive conduct directed to accomplishing the unlawful purpose; and (3) A dangerous probability of success. Airweld, Inc. v. Airco, Inc., 742 F.2d 1184, 1192 (9th Cir.1984) (quoting Wm. Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014, 1027 (9th Cir.1981)), cert. denied, 459 U.S. 825, 103 S.Ct. 58, 74 L.Ed.2d 61 (1982). Also recognized as a fourth element of the test is proof of causal antitrust injury. Marsann Co. v. Brammall, Inc., 788 F.2d 611, 613 (9th Cir.1986). The interrelationship of these elements results from the ability to infer certain elements by establishing others. For example, if specific intent to monopolize cannot be proven directly, such intent may be inferred from anticompetitive conduct. Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 887 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). To obtain the benefit of such an inference, there must be proof of conduct falling into one of two categories, “ ‘either (1) conduct forming the basis for a substantial claim of restraint of trade, or (2) conduct that is clearly threatening to competition or clearly exclusionary.’ ” Id. (quoting Wm. Inglis & Sons, 668 F.2d at 1029 n. 11). Similarly, a dangerous probability of success may be inferred either (1) from direct evidence of specific intent plus proof of conduct directed to accomplishing the unlawful design, or (2) from evidence of conduct alone, provided the conduct is also the sort from which specific intent can be inferred. Wm. Inglis & Sons, 668 F.2d at 1029. Thus, “conduct is the most critical element____ Predatory or anticompetitive conduct ... can support an inference of specific intent and dangerous probability of success.” Airweld, 742 F.2d at 1192. The question then becomes the extent to which plaintiffs must prove predatory or anticompetitive conduct; if the element of conduct is not satisfied, the court need look no further. To satisfy the attempted monopoly test, the conduct of which the plaintiff complains “must be such that its anticipated benefits [are] dependent upon its tendency to discipline or eliminate competition and thereby enhance the [defendant’s] long term ability to reap the benefits of monopoly power.” Wm. Inglis & Sons, 668 F.2d at 1030. A common method of establishing anti-competitive conduct to show attempted monopoly is proof that the defendants have engaged in predatory pricing. Plaintiffs assert that Rutledge practices predatory pricing by selling gasoline at retail prices lower than the wholesale prices he charges to plaintiffs. Plaintiffs state they are aware of two or three occasions on which this has happened. Pricing is considered predatory “ ‘only where the firm foregoes short-term profits in order to develop a market position such that the firm can later raise prices and recoup lost profits.’ ” Drinkwine v. Federated Publications, Inc., 780 F.2d 735, 739 (9th Cir.1985), cert. denied, —U.S.-, 106 S.Ct. 1471, 89 L.Ed.2d 727, reh’g denied, — U.S.-, 106 S.Ct. 2002, 90 L.Ed.2d 681 (quoting Wm. Inglis & Sons, 668 F.2d at 1031). The Ninth Circuit generally approves of cost-based methods of determining when a price is predatory. See Airweld, 742 F.2d at 1193. Cost-based methods involve a determination of numerous costs of the seller who is accused of predatory pricing. These include fixed costs, variable costs, average costs, and marginal costs, and predatory pricing is generally established by proof that the prices charged by the defendant were below his marginal cost or average variable cost. Id. Without discussing the specific definitions and methods of proof, it suffices here to say that the plaintiff must show that the defendant is charging prices which are less than his costs, i.e., that he is losing profits. This then gives rise to an inference that the defendant is attempting to drive his competitors out of business by undercutting their prices, even though he foregoes short term profits; the end result is a monopoly in the relevant market. See generally Wm. Inglis & Sons, 668 F.2d at 1031-39. Plaintiffs have not even mentioned Rutledge’s costs, must less determined his average variable costs or marginal costs. They have alleged only that on several occasions his wholesale prices have exceeded his retail prices. These allegations clearly are insufficient to support a claim of predatory pricing. The Ninth Circuit stated in Zoslaw v. MCA Distributing Corp., 693 F.2d at 888, that the onus is upon the plaintiff to prove that the defendant “ ‘sacrificed greater profits or incurred greater losses than necessary in order to eliminate the plaintiff.’ ” The court further reasoned: In the absence of such a claim on the part of [the plaintiff], much less any evidence to that effect, [plaintiff’s] predatory pricing claim is inadequate as a matter of law. Indeed, any other conclusion would support the perverse rationale that a defendant may not compete by lowering its prices “if competition would injure its competitors.” Id. [citations omitted]. On at least one occasion, the Ninth Circuit has departed from its strict rule of comparing retail price and average variable cost, and remanded the case to permit the plaintiff “to attempt to show by means other than cost-price comparisons that the anticipated benefits of [the defendant’s] price ‘depended on its tendency to eliminate competition.’ ” Marsann Co. v. Brammall, Inc., 788 F.2d at 615 (quoting Wm. Inglis & Sons, 668 F.2d at 1034) (emphasis in original). The ruling in that case, however, hinged on the difficulty of fixing the identity of the “product” for which to establish average variable costs, and on the fact that the alleged predatory price was offered only to a select customer. It appears from these authorities that Taggarts have not even reached the threshold issue necessary to an allegation of predatory pricing. The Ninth Circuit has held that “[i]n the absence of predatory conduct or per se violations, an antitrust defendant may still be found liable for attempted monopoly, but only if the antitrust plaintiff can establish a relevant market as a framework for evaluating behavior that does not rise to the level of a substantial restraint of trade.” Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1214 (9th Cir.1983), cert. denied, 471 U.S. 1007, 105 S.Ct. 1874, 85 L.Ed.2d 166, reh’g denied, 471 U.S. 1220, 105 S.Ct. 2369, 86 L.Ed.2d 268 (1985). The Court has concluded that plaintiffs are unable as a matter of law to establish predatory pricing. Their other assertions of anticompetitive conduct focus on the reduction of competition in the retail gasoline sales market by consolidation of the Bozeman area Conoco dealers. As discussed infra, however, plaintiffs have produced no evidence whatsoever that the alleged anticompetitive conduct of the defendants has had, or threatens to have, a restrictive effect on competition in either the retail or wholesale gasoline sales market in the Bozeman area or in any other relevant geographical area. Plaintiffs having come forward with no “specific facts” tending to show predatory or anticompetitive conduct, their allegations of attempted monopoly must fail as a matter of law. C. Price Discrimination The Taggarts complain that Rutledge is engaging in illegal price discrimination in violation of section 2(a) of the Clayton Act as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a), by use of discriminatory credit and rebate terms and by charging different wholesale prices to different retailers. Under the law of the Ninth Circuit, in order to establish jurisdiction under section 2(a) of the Robinson-Patman Act, a plaintiff must demonstrate: (1) that the defendant is “engaged in interstate commerce;” (2) that the price discrimination occurred “in the course of such commerce;” and (3) that “either or any of the purchases involved in such discrimination are in commerce.” Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 877 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). The Robinson-Patman Act's “in commerce” requirements are more stringent than the “affecting commerce” standards of section 1 of the Sherman Act. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 194-95, 95 S.Ct. 392, 398, 42 L.Ed.2d 378 (1974). “The recognized purpose of the Robinson-Patman Act [is] to reach the operations of large interstate businesses in competition with small local concerns.” Standard Oil Co. v. Federal Trade Commission, 340 U.S. 231, 238, 71 S.Ct. 240, 243, 95 L.Ed. 239 (1951). Thus, the reach of the Robinson-Patman Act “extends only to persons and activities that are themselves ‘in commerce.’ ” Gulf Oil, 419 U.S. at 194, 95 S.Ct. at 398. The Supreme Court has construed the “in commerce” requirement “to denote only persons or activities within the flow of interstate commerce—the practical, economic continuity in the generation of goods and services for interstate markets and their transport and distribution to the consumer.” Gulf Oil, 419 U.S. at 196, 95 S.Ct. 399. Therefore, unless Rutledge’s alleged discriminatory sales occur in the course of interstate activities and at least one of such sales was made in interstate commerce, plaintiffs’ claims must fail. Id. Plaintiffs contend that the “in commerce” requirement is satisfied. The requirement of “commerce” appears to be met. The Defendants are clearly engaged “in commerce,” acting in the cause [sic] of commerce, and the purchases by Plaintiffs of gasoline are “in commerce.” Plaintiffs’ Opening Brief at 68. Plaintiffs argue that the gasoline in question is produced outside the state of Montana, that it is transported to Montana through an interstate pipeline,' and that it is sold to many interstate travelers passing through Montana. Plaintiffs further cite one occasion on which Rutledge purchased gasoline directly from a Conoco jobber in the State of Idaho. Aside from that single purchase, which Rutledge admits, plaintiffs do not dispute the fact that Rutledge purchases his gasoline products from Conoco through a terminal in Montana, and sells exclusively to Montana gasoline retailers, generally within the Bozeman area. Plaintiffs have submitted no evidence of any sale by Rutledge outside Gallatin County, Montana. The actions of Conoco, and its sales of gasoline to Rutledge, are not at issue under this claim because plaintiffs’ price discrimination allegations are directed solely against Rutledge. Consequently, only the conduct of Rutledge may be considered in analyzing the Robinson-Patman allegations. It cannot be disputed that although Rutledge purchases his Conoco products within Montana some originate outside the state and are transported across state lines for resale. The only issue is whether, at the time Rutledge sells such products to the Gallatin retailers, they are still within the “flow of commerce.” The Ninth Circuit has recognized that “if goods