CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc.

• Decision Date: 09 February 1995
• Docket Number: No. 94-2172,WPOR-FM,94-2172
• Citation: 48 F.3d 618
• Parties: 1995 Copr.L.Dec. P 27,368, 34 U.S.P.Q.2d 1082 CMM CABLE REP., INC., d/b/a Creative Media Management, Inc., Plaintiff, Appellant, v. OCEAN COAST PROPERTIES, INC., d/b/a, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 618

48 F.3d 618

1995 Copr.L.Dec. P 27,368, 34 U.S.P.Q.2d 1082

CMM CABLE REP., INC., d/b/a Creative Media Management, Inc., Plaintiff, Appellant, v. OCEAN COAST PROPERTIES, INC., d/b/a WPOR-FM, et al.,

Defendants, Appellees.

No. 94-2172.

United States Court of Appeals, First Circuit.

Heard Feb. 9, 1995.

Decided March 6, 1995.

Anne S. Mason, with whom Mason & Assocs., P.A., John H. Rich III, William Sheils, and Perkins, Thompson, Hinckley & Keddy were on brief, for appellant.

James G. Goggin, with whom Roy S. McCandless and Verrill & Dana were on brief, for appellees.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

CMM Cable Rep., Inc. (CMM), plaintiff below, appeals from the district court's denial of preliminary injunctive relief associated with claims of copyright infringement, trademark infringement, and unfair competition. ¹ We dismiss the appeal as moot.

I

Because this case turns principally on its present procedural posture, we do no more than skim the facts.

CMM does business under the name and style of "Creative Media Management." It devises promotional strategies to assist radio stations in acquiring and retaining listeners. CMM claims to have created a promotional contest called "PAYROLL PAYOFF TM." In due season, it trademarked the name and copyrighted various materials designed for use in executing promotional campaigns that featured the contest. The mechanics of PAYROLL PAYOFF TM are not relevant to the mootness issue, and rehearsing them would serve no useful purpose. ²

CMM unsuccessfully pitched the PAYROLL PAYOFF TM promotion to radio station WMGX, its regular client in the Portland, Maine, market. Subsequently, a competing station, WPOR, ³ tried to acquire the right to run the contest. CMM refused to deal out of loyalty to WMGX. WPOR then took matters into its own hands and "created" (or so it says) a contest-type promotion, reminiscent in some respects of PAYROLL PAYOFF TM, called "PAYDAY." WPOR began broadcasting its PAYDAY contest in the fall of 1994.

II

Unconsoled by the bromide that imitation is the sincerest form of flattery, CMM brought suit in the federal district court charging, among other things, copyright infringement, trademark infringement, and unfair competition. CMM's complaint prayed, inter alia, for damages, equitable remedies, and attorneys' fees. In addition, CMM moved for both temporary and preliminary injunctive relief to halt WPOR's use of the PAYDAY contest pendente lite.

The district court refused to issue a temporary restraining order. Instead, it held an evidentiary hearing and, on November 4, 1994, granted a limited preliminary injunction prohibiting further production and distribution of the brochures that WPOR had prepared to help promote its PAYDAY scheme. ⁴ The court refused to enjoin WPOR from proceeding with the contest proper, however, ruling that CMM had shown scant prospects of success on its principal claims. This appeal ensued.

While the appellate process was underway, WPOR moved to dismiss the appeal on grounds of mootness. In support, it averred that the PAYDAY contest had run its course, and was no longer being broadcast. CMM objected to the proposed dismissal. Though admitting that the contest was off the air, CMM asserted that its appeal could not fairly be characterized as moot. On February 9, 1995, we heard arguments spanning both the question of mootness and the merits of the appeal.

III

A federal appellate court may only exercise jurisdiction over actual "cases" or "controversies." U.S. Const. art. III, Sec. 2, cl. 1. The instant appeal provides this court with no live controversy to resolve, and, thus, we lack appellate jurisdiction. We explain briefly.

This is an interlocutory appeal. It is brought strictly and solely to test whether the district court abused its discretion in withholding certain provisional relief. The relief sought is in the nature of a preliminary injunction. The purpose of a preliminary injunction is to preserve the status quo, freezing an existing situation so as to permit the trial court, upon full adjudication of the case's merits, more effectively to remedy discerned wrongs. See Chalk v. United States Dist. Court, 840 F.2d 701, 704 (9th Cir.1988); American Hosp. Ass'n v. Harris, 625 F.2d 1328, 1330 (7th Cir.1980). The court's interim injunctive decree attempts to prevent further injury by maintaining the status quo, cf. Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991) (listing the "potential for irreparable injury" as a standard prerequisite for the granting of a preliminary injunction), thus enhancing the court's ability, if it ultimately finds for the movant, to minimize the harmful effects of the defendant's wrongful conduct.

The appealability of orders "granting, continuing, modifying, refusing or dissolving" preliminary injunctions, 28 U.S.C. Sec. 1292(a)(1), fits hand-in-glove with this purpose. Indeed, the impetus behind the statutory exception to the "final judgment" rule that allows an immediate appeal of an order refusing a preliminary injunction is to prevent irreparable harm to a litigant who, otherwise, might triumph at trial but be left holding an empty bag. See United States v. Cities Serv. Co., 410 F.2d 662, 664 (1st Cir.1969). Pyrrhic victories, after all, are often cold gruel in the eyes of prevailing parties and do little to burnish the public's perception of the judicial system. We think it follows that, when this harm-preventing function cannot be effectuated by the successful prosecution of an interlocutory appeal from the denial of interim injunctive relief, then the viability of the appeal itself is called into question. See, e.g., Bank of N.Y. Co. v. Northeast Bancorp, Inc., 9 F.3d 1065, 1067 (2d Cir.1993).

Such a configuration exists here. Because WPOR has finished airing its PAYDAY contest, this appeal seeks to enjoin an event that has already fully occurred. No mandate that we might issue can turn back the pages of the calendar and either stop the commission of the allegedly infringing act or fully palliate its effects. Though federal courts possess great authority, they lack the power, once a bell has been rung, to unring it. In short, no justiciable controversy exists because this appeal can no longer serve the intended harm-preventing function, or, put another way, this court, within the isthmian confines of an interlocutory appeal from an order refusing to restrain a now completed act, has no effective relief to offer.

Our analysis finds ample support in the case law. It has been common ground throughout the last century that an appeal, although live when taken, may be rendered moot by subsequent developments. See Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895). More specifically, "an appeal from the denial of a motion for a preliminary injunction is rendered moot when the act sought to be enjoined has occurred." McLane v. Mercedes-Benz of North Am., Inc., 3 F.3d 522, 524 (1st Cir.1993); accord Bank of N.Y., 9 F.3d at 1067; Oakville Dev. Corp. v. FDIC, 986 F.2d 611, 613 (1st Cir.1993). Based on these precedents, it appears that CMM's appeal is moot. See Bank of N.Y., 9 F.3d at 1067 (explaining that an appeal from the denial of a motion for preliminary injunction is moot if the appellate court can no longer preserve, or feasibly restore, the status quo); Oakville, 986 F.2d at 613 (holding that a case is moot upon the inability of a court to provide effective relief in respect to the claim before it).

We emphasize that appellant's suit remains pending in the district court. Unlike this appeal, the suit itself is not moot because the relief requested is attainable; if appellant ultimately prevails, the district court can award money damages, attorneys' fees, and other effective relief. A suit that seeks damages for harm caused by past practices is not rendered moot by the cessation of the challenged conduct. See Curtis Indus., Inc. v. Livingston, 30 F.3d 96, 97-98 (8th Cir.1994) (explaining that a judgment declaring an appeal of a ruling anent a preliminary injunction moot does not preclude the district court from proceeding to hear and determine a claim for damages arising out of the same conduct); Trane Co. v. O'Connor Sec., 718 F.2d 26, 27 (2d Cir.1983) (dismissing appeal from denial of preliminary injunction as moot "[e]ven though issues may remain for a trial on the merits").

IV

Appellant explores two avenues in its effort to detour around the barrier of nonjusticiability. Both are blind alleys.

First, appellant asseverates that the harm it has experienced may simply be in a state of temporary remission. It posits that WPOR, having run the allegedly infringing contest once, may do so again, and, if it chooses its time frame skillfully, may continue to dodge appellate review. The asseveration cannot withstand scrutiny.

To be sure, the likely recurrence or repetition of the wrong sought to be enjoined, when coupled...