Auwood v. Harry Brandt Booking Office, Inc.

• Decision Date: 21 November 1986
• Docket Number: Civ. No. N-79-144 (PCD).
• Citation: 647 F. Supp. 1551
• Parties: William AUWOOD et al. v. HARRY BRANDT BOOKING OFFICE, INC. et al.
• Court: U.S. District Court — District of Connecticut

647 F. Supp. 1551

William AUWOOD et al. v. HARRY BRANDT BOOKING OFFICE, INC. et al.

Civ. No. N-79-144 (PCD).

United States District Court, D. Connecticut.

November 21, 1986.

Stephen M. Trattner, Robert Smith, Levy & Smith, Washington, D.C., for plaintiffs.

Edwin L. Doernberger, Arthur Sachs, Schpero, Berman & Shure, New Haven, Conn., John L. Calvocoressi, Hartford, Conn., Richard C. Seltzer and Aton Arbiser, New York City, Kay, Scholer, Fierman, Hays & Handler, for defendants.

RULING ON MOTION FOR ENTRY OF JUDGMENT

DORSEY, District Judge.

Plaintiff has moved for judgment based on the verdict rendered on June 18, 1986, and for an order declaring that the amount received in previous settlements with other co-conspirators should not be used to offset the jury verdict. Defendants argue that (1) judgment based on the verdict should not enter on the ground that plaintiffs have failed to prove actual damages but that if judgment is entered it should be in the amount of $1.00; and (2) that prior settlements should be deducted from the judgment and from any award of attorney fees.

The facts of the case need not be repeated here. In answers to interrogatories the jury found that defendants had conspired, combined or agreed to restrain trade unreasonably and thus "adversely affected plaintiffs' opportunities to obtain a fair allocation of first-run films for the Liberty Theatre" and "proximately caused injury or damage to plaintiffs' business." Interrogatories 1 and 2 (June 12, 1986). This was referred to as a split of the first-run films. Thereupon trial began on the issue of damages after which two theories of compensatory damages were submitted to the jury. The first was the demand theory, which, as the jury was instructed, required the exhibitor to prove "that it bid for the right to show a particular picture and that its bid was rejected because of the unlawful conspiracy...." Transcript ("Tr.") at 167 (June 17, 1986). The exhibitor would then be entitled to the difference between the profits it would have made on the particular pictures minus the profits it made on the pictures it actually showed. Id. at 168. The second theory, the comparability analysis, required plaintiffs to prove initially that (1) it was futile for their theatre, the Liberty, to bid on first-run films because of the split; and (2) that the Norwich Cinema, to which plaintiff claimed comparability, was in fact comparable to the Liberty. If these prerequisites were met, Liberty might then be entitled to recover the difference between its net receipts (box office receipts minus costs and expenses) and the Norwich net receipts. Id. at 168-70.

The jury was also instructed on awarding nominal damages. This portion of the charge, as most relevant to the pending motion, is set forth in full:

Nominal damages are a minimal sum that may be awarded when a person's rights have been violated, but when he has not proved any actual damages or when he has been unable to prove an amount to which his injuries might entitle him.

In considering plaintiffs' claim of damage for what occurred after and as a consequence of a violation of plaintiffs' rights, you must consider whether plaintiffs acted so as to mitigate damages. If plaintiffs' rights were violated, plaintiffs are obliged to act in a manner that reduces, restricts or limits damages to whatever extent is reasonably within their ability. Plaintiffs may recover only such consequential damage as was proximately caused by the violation and not such damages which may have occurred because plaintiffs failed to take steps to mitigate, limit, restrict, or reduce their damages.

You have found defendants have violated plaintiffs' legal rights, and if you should further find that plaintiffs have not proven any of the damages alleged in the complaint, you may award plaintiffs nominal damages.

Id. at 172.

Pursuant to Fed.R.Civ.P. 49(a) the damage issues were submitted via special interrogatories.¹ Quaker City Gear Works, Inc. v. Skil Corp., 747 F.2d 1446, 1453 (1984), cert. denied, 471 U.S. 1136, 105 S.Ct. 2676, 86 L.Ed.2d 694 (1985); see also E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, § 6.05 at 181-82 (1977 & Supp.1986). With regard to the demand theory, embodied in Interrogatory 4, the jury found that plaintiffs were not entitled to compensatory damages. With regard to the comparability theory, the jury found that plaintiffs had met the first prerequisite — proving the futility of trying to obtain first-run films — but concluded on the second prerequisite that Norwich was not a comparable theatre. In response to Interrogatory 3, designed to measure the compensatory damages based on the comparability theory, the jury apparently concluded that plaintiffs were either not entitled to compensatory damages or that they had failed to prove them and, instead, awarded $75,000 in nominal damages ($3,000 for the period 1976-1977; $67,000 for the period 1978-1981; and $5,000 for the period 1982-1985).²

Discussion

I.

This case raises an interesting and apparently unique issue, since neither party nor the court has discovered a case like it — can the award of $75,000 in nominal damages be reconciled with the findings that compensatory damages were unwarranted and can judgment in that amount enter for plaintiffs?

Under Fed.R.Civ.P. 49(a) and 58, a judge must enter judgment on the facts found by the jury in response to the special interrogatories, provided such facts are consistent with one another.³ 5A J. Moore, Moore's Federal Practice, ¶ 49.034 at 49-29 (1984); see also Quaker City, 747 F.2d at 1452. Here, the claimed inconsistency lies with the fact that the jury expressly found that plaintiffs failed to prove damages via either the demand theory or the comparability theory — the only theories claimed. Nonetheless, they awarded $75,000 as nominal damages.

Under Rule 49(a), a court should make all efforts to sustain the jury's findings against claims of inconsistency. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962) ("Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way.").⁴ In so doing, "every reasonable intendment must be indulged in their support." Federal Jury Practice, § 6.07 at 188; Davis v. West Community Hospital, 755 F.2d 455, 465 (5th Cir.1985) ("It is the duty of the court to attempt to reconcile apparently inconsistent answers by a jury to special interrogatories."); Henry v. A/S Ocean, 512 F.2d 401, 406 (2d Cir.1975) (the "court should reconcile the jury's verdict if at all possible").⁵ "The test to be applied in reconciling apparent conflicts between the jury's answers is whether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted." 5A J. Moore, Moore's Federal Practice, ¶ 49.034 at 49-29 to -31. In attempting to reconcile the answers, one must look beyond the questions and consider the jury instructions as well. Davis, 755 F.2d at 465. If reconciliation is impossible, the court cannot enter judgment, but must instead either return the jury for further deliberation or order a new trial. Federal Jury Practice, § 6.07 at 188; 5A J. Moore, Moore's Federal Practice, ¶ 49.034 at 49-32 to -34; Stanton v. Astra Pharmaceutical Products, 718 F.2d 553, 575 (3d Cir. 1983) (further deliberation); Bernardini v. Rederi A/B Saturnus, 512 F.2d 660, 662-63 (2d Cir.1975) (new trial); Hand v. United States, 441 F.2d 529, 531 (5th Cir.1971) (new trial).

The jury was charged that they could award damages which "would fairly, reasonably and justly compensate plaintiff for any actual losses sustained" and which could be assessed without "guessing or speculating." Interrogatory 3; Tr. at 166. By identifying the damages they awarded under Interrogatory 3 as "nominal," they implicitly found that plaintiffs had either sustained no actual losses or that they had failed to prove their losses. The same is true with regard to the demand theory embodied in Interrogatory 4. Nominal damages could be awarded only if plaintiff "has not proved any actual damages or when he has been unable to prove an amount to which his injuries might entitle him." Tr. at 172 (June 17, 1986).

Having found that plaintiffs were not entitled to actual damages under either of the two theories advanced, an award of nominal damages was both logical and consistent. The difficulty lies in the $75,000 amount of those damages in light of the instruction that such an award could only be minimal. Although there is no inconsistency between the interrogatories, Rule 58 requires that judgment be entered not only in accordance with the facts, but also the law. Quaker City, 747 F.2d at 1446, 1453. "By returning a special verdict the jury has found the facts and then it becomes the duty of the court to apply the law to those facts and render judgment." 6A J. Moore, Moore's Federal Practice, ¶ 58.053 at 58-42 (1984 & Supp.1986).

Nominal Damages

Plaintiffs initially claim that, although nominal damages may be a minimal sum, they are, nevertheless, relative to the individual circumstances of each case and may thus exceed $1.00. "Nominal damages, as the term implies, are ... trivial sums ... awarded in some cases to vindicate a legal right, even though it is clear that no economic harm has been done. In other cases such damages are awarded when the plaintiff has asserted substantial damages, but has been unable to prove those damages with the required certainty." D. Dobbs, Remedies, § 3.8 at 191 (1973) (citations omitted); Redding v. Fairman, 717 F.2d 1105, 1119 (7th Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984) (violation of rights); Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir. 1977) (uncertain damages). Plaintiffs' citations notwithstanding, the overwhelming majority of cases...