                       Revised May 1, 2001

                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                ________________________________

                          No. 99-60840
                ________________________________


                     LAKE HILL MOTORS, INC.,

                                               Plaintiff-Appellant,


                                  v.

           JIM BENNETT YACHT SALES, INC.; JIM BENNETT;
      SCOTT WALL; ROBERT EWING; GENE HILL; JOHN DOES 1-10;
     YAMAHA MOTOR CORPORATION, USA; YAMAHA MOTOR CO., LTD.,

                                               Defendants-Appellees.

          _____________________________________________

           Appeal from the United States District Court
             For the Northern District of Mississippi
          _____________________________________________

                          April 13, 2001

Before REYNALDO G. GARZA, DAVIS, and JONES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Lake Hill Motors, Inc. sued Jim Bennett Yacht Sales, Inc., its

owner Jim Bennett (whom we refer to together as Jim Bennett),

Yamaha Motor Co., Ltd., its subsidiary Yamaha Motor Corporation,

USA, certain employees of Yamaha Motor Co., Ltd. (whom we refer to

together as Yamaha), and other unnamed dealers of Yamaha products

for violations of the federal antitrust laws as well as violations

of Mississippi law. The district court granted summary judgment to
all the defendants on the antitrust claims and one state law claim

and dismissed the remaining state law claims without prejudice.

Finding no genuine issues of material fact concerning Lake Hill’s

antitrust claims, we affirm the judgment of the district court.

                                      I.

      Yamaha manufactures a variety of boats and motors, including

a line of one- to three-person motorized pleasure craft designed

for   use   on     open   water.   Yamaha    competes   with    several   other

manufacturers in the market for these personal watercraft.                Yamaha

sells its products to consumers through a network of independent

dealers.

      Both Lake Hill and Jim Bennett are dealers of Yamaha personal

watercraft.        Lake Hill is located in Corinth, Mississippi and Jim

Bennett in Iuka, Mississippi, about fifteen miles away. Because of

their proximity, Lake Hill and Jim Bennett compete with each other

in the sale of Yamaha personal watercraft.              Lake Hill’s Yamaha

dealership is nonexclusive and does not require Lake Hill to sell

Yamaha products to consumers at or above any particular price.

      In December of 1997 Lake Hill filed this lawsuit.              It first

alleged that Jim Bennett, Yamaha, and certain other unnamed dealers

of Yamaha personal watercraft conspired to fix the minimum resale

price of Yamaha personal watercraft, and to terminate Lake Hill as

a Yamaha dealer for charging less than that fixed price, in

violation of § 1 of the Sherman Act, 15 U.S.C. § 1.             Lake Hill next

alleged     that    Yamaha’s   cooperative    advertising      program,   which

                                     -2-
reimbursed dealers for advertising only when that advertising

stated either Yamaha’s suggested retail price or no price, violated

§ 1 of the Sherman Act.1     Lake Hill next alleged that Yamaha

monopolized the market for personal watercraft in Mississippi,

Tennessee, and Alabama in violation of § 2 of the Sherman Act, 15

U.S.C. § 2.    Finally, Lake Hill alleged that the defendants

committed various violations of Mississippi law.   Lake Hill sought

an injunction under § 16 of the Clayton Act, 15 U.S.C. § 26, to

prevent Yamaha from terminating its dealership, as well as money

damages under § 4 of the Clayton Act, 15 U.S.C. § 15.

     Both Yamaha and Jim Bennett moved for summary judgment on the

three antitrust claims after the conclusion of discovery.      The

district court subsequently granted summary judgment to both Yamaha

and Jim Bennett on all the antitrust claims.    The district court

held that Lake Hill had alleged a horizontal conspiracy to fix

prices amongst Jim Bennett and other unnamed Yamaha personal

watercraft dealers.   However, as Lake Hill had not identified any


     1
     The third count of Lake Hill’s complaint in fact alleges that
the conspiracy to fix minimum resale prices between Yamaha, Jim
Bennett and the other unnamed Yamaha dealers violated § 1 of the
Sherman Act under a rule of reason analysis.         Based on the
arguments submitted by Lake Hill in response to Yamaha and Jim
Bennett’s motions for summary judgment, the duplication in Lake
Hill’s complaint, and the fact that resale price maintenance
agreements are per se unlawful, see Business Elec. Corp. v. Sharp
Elec. Corp., 485 U.S. 717, 724, 108 S.Ct. 1515, 99 L.Ed.2d 808
(1988), the district court construed the third count of Lake Hill’s
complaint as concerning Yamaha’s cooperative advertising program.
We do the same given Lake Hill’s arguments about the program in
this appeal.

                                -3-
dealer other than Jim Bennett as a member of this conspiracy, it

failed to show that there was any conspiracy to fix prices amongst

Yamaha personal watercraft dealers. The district court held in the

alternative that Lake Hill had failed to make any showing that it

had been injured as a result of this purported conspiracy.

      The   district   court   held,     regarding   Yamaha’s     cooperative

advertising program, that Lake Hill failed to make any showing that

the   program   harmed     competition    in   the   market     for   personal

watercraft in any way.      As to Lake Hill’s § 2 claim, the district

court again held that Lake Hill had failed to produce any proof of

a conspiracy that had harmed Lake Hill.         Having granted Yamaha and

Jim Bennett summary judgment on the three antitrust claims, the

district court also granted Yamaha and Jim Bennett summary judgment

on Lake Hill’s Mississippi law claim for restraint of trade.               The

district    court   then   dismissed     the   remainder   of    Lake   Hill’s

Mississippi law claims without prejudice.

      Lake Hill then moved for reconsideration on the grounds of

newly discovered evidence and filed an affidavit in support of the

motion.     The district court denied the motion on the ground that

the evidence had been available to Lake Hill before it ruled on

Yamaha and Jim Bennett’s motions for summary judgment so that the

evidence was not submitted timely.             Lake Hill then took this

appeal.




                                    -4-
                                   II.

     We review the district court’s grant of summary judgment de

novo.   Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d

320, 324 (5th Cir. 1998).     Summary judgment is appropriate, “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, show that there is no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.”          Id. at 324-25.

     Before reaching the merits of Lake Hill’s arguments, we first

note that Lake Hill has not argued on appeal that the district

court erred in granting summary judgment against it on its § 2

claim or in dismissing its other Mississippi law claims.             As such,

we must consider those claims abandoned.           Yohey v. Collins, 985

F.2d 222, 225 (5th Cir. 1993).

     We begin with Lake Hill’s argument that Yamaha, Jim Bennett,

and other unnamed Yamaha dealers conspired to fix the minimum

resale price of Yamaha personal watercraft.              Section 4 of the

Clayton Act provides that “any person who shall be injured in his

business or   property   by   reason     of   anything   forbidden    in   the

antitrust laws may sue therefor....”          15 U.S.C. § 15.    A private

plaintiff must show some injury to his business or property which

results from some violation of the antitrust laws to recover

damages under § 4 of the Clayton Act.         United Indus., Inc. v. Eimco

Process Equip. Co., 61 F.3d 445, 448 (5th Cir. 1995); McCormack v.

NCAA, 845 F.2d 1338, 1341 (5th Cir. 1988).               Thus, even if the

                                   -5-
plaintiff can show some violation of the antitrust laws, they may

not recover under § 4 of the Clayton Act unless they can also show

that they have suffered some injury as a result of the violation.

Slowiak v. Land O’ Lakes, Inc., 987 F.2d 1293, 1296 (7th Cir.

1993); Isaksen v. Vermont Castings, Inc., 825 F.2d 1158, 1165 (7th

Cir. 1987).   Likewise, a plaintiff seeking injunctive relief under

§ 16 of the Clayton Act can only obtain that relief when they show

a significant threat of some injury to their business or property

from a violation of the antitrust laws.     McCormack, 845 F.2d at

1341; Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104,

113, 107 S.Ct. 484, 93 L.Ed.2d 427 (1986) (holding that §§ 4 and 16

of the Clayton Act provide a complementary set of remedies).2

     Lake Hill asserts that Yamaha, Jim Bennett and certain other

unnamed Yamaha dealers conspired to fix a minimum resale price for

Yamaha personal watercraft.   If Lake Hill were able to prove such

a conspiracy between Yamaha and Jim Bennett, that conspiracy would




     2
      A showing of injury-in-fact by a plaintiff in an antitrust
action is in fact only a first step. The plaintiff’s injury must
also flow from the anticompetitive effect of the violation of the
antitrust laws which causes the plaintiff’s injury. That is, the
injury the plaintiff suffers must be antitrust injury. Brunswick
Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690,
50 L.Ed.2d 701 (1977). Because we find that Lake Hill has failed
to show that it suffered any injury at all, we need not consider
whether any injury it could suffer as a result of the violation it
has alleged would qualify as antitrust injury. See Pace Elec.,
Inc. v. Canon Computer Systems, Inc., 213 F.3d 118, 122-23 (3rd
Cir. 2000).

                                -6-
be a violation of § 1 of the Sherman Act.3    See Monsanto Co. v.

Spray-Rite Serv. Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d

775 (1984) (setting forth what evidence is required to allow a

finding of a conspiracy to fix minimum resale prices between a

manufacturer and a dealer).   Furthermore, the violation would be

per se, meaning that Lake Hill would not need to show any harm to

competition as a result of the conspiracy.    Bus. Elec. Corp. v.

Sharp Elec. Corp., 485 U.S. 717, 724, 108 S.Ct. 1515, 99 L.Ed.2d

808 (1988).   However, we need not consider whether Lake Hill

produced any evidence that would allow a reasonable trier of fact

to conclude that there was a conspiracy between Yamaha and Jim

Bennett, because Lake Hill has produced no evidence that would

allow a reasonable trier of fact to conclude that it was injured as

a result of this alleged conspiracy.

     Almost all of the evidence Lake Hill submitted in response to

the summary judgment motions concerns the extent to which Jim

Bennett disliked and complained about other Yamaha dealers who sold

personal watercraft below Yamaha’s suggested retail price.   Though

this may be relevant to showing an agreement between Yamaha and Jim

     3
      The district court read Lake Hill’s complaint as stating a
cause of action arising out of a horizontal conspiracy between Jim
Bennett and other Yamaha dealers. It was correct to note that Lake
Hill had not identified any of the other dealers who had conspired
with Jim Bennett in this alleged conspiracy. However, Lake Hill’s
complaint is better read as alleging a vertical conspiracy, that is
one between the manufacturer Yamaha, the dealer Jim Bennett, and
other unnamed dealers.    To allege a vertical conspiracy to fix
minimum resale prices, Lake Hill need not identify anyone other
than Yamaha and Jim Bennett.

                               -7-
Bennett, it shows nothing in the way of injury to Lake Hill.              The

only evidence Lake Hill pointed to concerning possible injury to

itself as a result of the alleged conspiracy is found in the

deposition testimony of Jerry Dan McLemore, one of the principals

of Lake Hill.        McLemore testified that he met with Scott Wall, a

Yamaha executive and one of the defendants in this lawsuit, at a

Yamaha dealers’ meeting in Dallas sometime during 1995.              McLemore

said that Wall “raked [him] over the coals” for cutting prices

below Yamaha’s suggested retail price and threatened McLemore that

Lake Hill’s dealership would be terminated if Lake Hill’s prices

did not increase.

       Though Wall may very well have threatened McLemore at the

meeting in Dallas in 1995, that fact is insufficient to show that

Lake Hill has been injured by any conspiracy between Yamaha and Jim

Bennett.      Lake Hill was never terminated as a dealer after the

Dallas meeting and remains a Yamaha dealer to this day.             Moreover,

Lake   Hill    has    presented   no   evidence   that   it   was   otherwise

sanctioned by Yamaha in any way after the meeting in Dallas.

       Neither has Lake Hill presented any evidence that it raised

its prices after the Dallas meeting to meet Yamaha’s alleged

threats.      McLemore himself testified that every Yamaha personal

watercraft that Lake Hill sold from 1996 to 1998 was sold below

Yamaha’s suggested retail price.         McLemore also admitted that any

sales that Lake Hill lost in the mid-1990s were due solely to

vigorous competition with Jim Bennett. Lake Hill has made no

                                       -8-
showing that it was injured in its business or property, and so has

no cause of action under § 4 of the Clayton Act.

       Neither is Lake Hill entitled to injunctive relief under § 16

of the Clayton Act.         Section 16 requires some threat of antitrust

injury to justify injunctive relief.              A threat made sometime in

1995 and never acted upon before the filing of this lawsuit in

December of 1997 can not be said to be a genuine threat sufficient

to    justify    injunctive     relief   under    §   16.   In   sum,    whatever

conspiracy existed between Yamaha and Jim Bennett proved irrelevant

to Lake Hill, as Yamaha never did anything to Lake Hill in

furtherance of the conspiracy.

       Yamaha and Jim Bennett were also entitled to summary judgment

on    Lake    Hill’s    §   1    claim   concerning     Yamaha’s   cooperative

advertising program.            We have previously held that cooperative

advertising programs such as Yamaha’s are to be analyzed under the

rule of reason.        In re Nissan Antitrust Litigation, 577 F.2d 910,

917 (5th Cir. 1978).        Thus, Lake Hill must show not only that there

was    some     conspiracy,      but   also    that   the   conspiracy    harmed

competition, to show a violation of § 1 of the Sherman Act.

Business Elec., 485 U.S. at 723-25.            Lake Hill has made no showing,

and indeed has not even attempted to make a showing, that Yamaha’s

cooperative advertising program harmed competition in the market

for personal watercraft.           Jerry Dan McLemore in fact admitted in

his deposition that competition for the sale of personal watercraft

was fierce.

                                         -9-
                                 III.

     Lake Hill, in its motion for reconsideration under Fed. R.

Civ. P. 59(e), presented an affidavit from Pug Vickers, a Lake Hill

employee.     The affidavit states that Yamaha allocated Lake Hill

only 2 model year 2000 personal watercraft even though Lake Hill

ordered 23.    Lake Hill now argues that this affidavit shows that it

has suffered, or at least is threatened with, some injury from the

alleged resale price maintenance conspiracy between Yamaha and Jim

Bennett.    We will not consider this affidavit, however, as it is

not a part of the record before us.

     As we have said, the district court denied Lake Hill’s motion

for reconsideration of its summary judgment.      The district court

held that the facts asserted in the Vickers affidavit were known to

Lake Hill before the summary judgment ruling and thus the affidavit

was not timely filed as part of a motion for reconsideration based

on new evidence.     We review the district court’s ruling on the

motion for reconsideration only for an abuse of discretion.     Farm

Credit Bank of Texas v. Guidry, 110 F.3d 1147, 1154 (5th Cir.

1997).     Lake Hill makes no arguments in its appeal as to why the

district court abused its discretion in denying Lake Hill’s motion

for reconsideration.

     Moreover, the record indicates that Yamaha informed Lake Hill

of the model year 2000 product allocation no later than August 9,

1999, and the district court did not issue its summary judgment

until August 23, 1999.       A district court is well within its

                                 -10-
discretion to refuse to consider evidence submitted as part of a

motion under Rule 59(e) which was known to the moving party before

the summary judgment was issued.   Lavespere v. Niagra Mach. & Tool

Works, Inc., 910 F.2d 167, 175 (5th Cir. 1990).   The district court

did not abuse its discretion in refusing to consider the Vickers

affidavit and in denying Lake Hill’s motion for reconsideration.

                               IV.

     Lake Hill has not shown any injury or threat of injury

pursuant to its resale price maintenance cause of action.   Nor has

it shown any harm to competition pursuant to its cause of action

concerning Yamaha’s cooperative advertising program.     Therefore,

the judgment of the district court is AFFIRMED.

AFFIRMED.




                               -11-
