Home Placement Service, Inc. v. Providence Journal Co.

• Decision Date: 01 June 1987
• Docket Number: Nos. 86-1881,86-1959,s. 86-1881
• Parties: 1987-1 Trade Cases 67,590, 8 Fed.R.Serv.3d 45 HOME PLACEMENT SERVICE, INC., et al., Plaintiffs, Appellants, v. The PROVIDENCE JOURNAL COMPANY, Defendant, Appellee. HOME PLACEMENT SERVICE, INC., et al., Plaintiffs, Appellees, v. The PROVIDENCE JOURNAL COMPANY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1199

819 F.2d 1199

1987-1 Trade Cases 67,590, 8 Fed.R.Serv.3d 45

HOME PLACEMENT SERVICE, INC., et al., Plaintiffs, Appellants, v. The PROVIDENCE JOURNAL COMPANY, Defendant, Appellee.

HOME PLACEMENT SERVICE, INC., et al., Plaintiffs, Appellees, v. The PROVIDENCE JOURNAL COMPANY, Defendant, Appellant.

Nos. 86-1881, 86-1959.

United States Court of Appeals First Circuit.

Argued March 5, 1987.

Decided June 1, 1987.

Ralph J. Gonnella with whom Lynette Labinger, Providence, R.I., was on brief, for Home Placement Service, Inc.

Joseph V. Cavanagh, Jr. with whom Knight Edwards and Patricia A.S. Zesk, Providence, R.I., were on brief, for The Providence Journal Co.

Before CAMPBELL, Chief Judge, COFFIN and TORRUELLA, Circuit Judges.

COFFIN, Circuit Judge.

This aged and oft-detoured antitrust case originated in the District of Rhode Island and, in the course of its existence, has led to the disqualification or recusal of all federal judges sitting in that district. Appellants Home Placement Service, Inc. and Joseph P. Muschiano, Jr. (collectively referred to as "Home Placement") initiated this litigation in 1977, alleging that appellee Providence Journal Company (the "Journal") had violated sections 1 and 2 of the Sherman Act, 15 U.S.C. Sec. 1, 2, by adopting a policy in 1973 of refusing to accept rental information advertising in its classified columns. The case is now before us for the third time in the last five years, having at one point or another captured the attention of each active member of this court. The tortuous procedural route travelled by this case is well documented in the two previous published opinions of this court and the intervening district court decision. See 739 F.2d 671 (1st Cir.1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 964, 83 L.Ed.2d 969 (1985) ("Home Placement II "); 682 F.2d 274 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983) ("Home Placement I "); 573 F.Supp. 1423 (D.R.I.1983).

In the current appeal, Home Placement seeks review of a district court determination that its proffered evidence of antitrust damages is legally insufficient and that its motion for a new trial on damages is without merit. It argues that the damage evidence in the record is sufficient to justify an award and, alternatively, that Federal Rule of Civil Procedure 63 and "constitutional considerations" mandate a new trial on the issue of damages in this case. It also argues that the district court's decision to award only nominal damages in this case does not comport with Federal Rule of Civil Procedure 52. In addition, both parties appeal the district court's award of attorney's fees in the amount of $74,055.16 to Home Placement.

I. Rule 63 and the Propriety of a New Trial.

Home Placement first argues that the district court erred in denying its renewed motion for a new trial on the issue of damages. Because it is impossible to evaluate or even understand this contention without some reference to portions of the case's procedural history, we briefly recount the background facts relevant to the new trial motion.

A. Procedural Background.

Home Placement's antitrust claims against the Journal arose from the same nucleus of facts that formed the basis of a similar suit by a previous plaintiff, Homefinders of America. See Homefinders of America, Inc. v. Providence Journal Co., 471 F.Supp. 416 (D.R.I.1979), aff'd, 621 F.2d 441 (1st Cir.1980) ("Homefinders "). Like Home Placement, Homefinders had also been denied advertising space in the Journal's classified pages. Judge Boyle, sitting without a jury, heard evidence in the Homefinders case for eleven days, eventually finding against Homefinders on the issue of liability. ¹

Because Judge Boyle had acted as trier of fact throughout the Homefinders trial, and because much of Home Placement's case involved the same witnesses and exhibits as the Homefinders case, the parties to the instant case entered the following stipulation:

The parties in the above-captioned matter hereby agree that the plaintiffs' claim for trial by jury is waived and that the case will proceed for trial before Judge Boyle, sitting without a jury. The parties further agree that the full record in the case of Homefinders of America, Inc. v. Providence Journal Company, et al (C.A. No. 5133) will be included as part of the record in the above-captioned matter, subject to objections to the admissability [sic] of evidence already in the record.

Home Placement describes the stipulation as a procedural device that permitted Judge Boyle to utilize the earlier Homefinders record as "trial testimony" and evidence, rather than having to hear the same witnesses for a second time.

The evidence for the Home Placement case consisted only of the stipulated record from the previous trial and the additional live testimony of Home Placement's president, Muschiano. As in the Homefinders case, Judge Boyle ruled against Home Placement on the issue of liability. On appeal, however, we reversed this decision ² and remanded the case for a determination of damages, injunctive relief, and attorney's fees. Home Placement I, 682 F.2d at 281. We also suggested that the matter be assigned to a new trier of fact on remand. Id. In a subsequent order we clarified that our opinion did not amount to a requirement that the district court hold a new trial on the issue of appropriate relief. See Home Placement II, 739 F.2d at 673.

Judge Selya, who was assigned the case on remand, determined that a new trial was unnecessary. Instead, he reviewed the existing record and issued an opinion granting injunctive relief and awarding attorney's fees, but concluding that there was insufficient evidence for an award of more than nominal damages. See 573 F.Supp. at 1423. On appeal of the damage and attorney's fee rulings, we held that the case had to be remanded again because, for reasons no longer relevant, Judge Selya should have recused himself pursuant to 28 U.S.C. Sec. 455(a). Id. at 677. In addition, we reconsidered our earlier clarification order in the face of Home Placement's argument, raised for the first time, that Rule 63 required a new trial on the issue of damages in this case. ³ On this issue, we reaffirmed that Home Placement was not entitled to a new trial for three basic reasons: (1) the earlier order constituted the "law of the case;" (2) the stipulation of the parties precluded the operation of Fed.R.Civ.P. 63; and (3) Rule 63, even if applicable, is discretionary and failure to grant a new trial in these circumstances would not amount to an abuse of discretion. Id. at 677-78.

On remand for the second time, the case was assigned to Judge Pettine, who voluntarily recused himself from the case. The case then travelled to the District of New Hampshire where it became the responsibility of Judge Loughlin. At this point, Home Placement renewed its motion for a new trial, citing our recent decision in Townsend v. Gray Bus Lines Co., 767 F.2d 11 (1st Cir.1985), that Rule 63's "negative inference" mandates a new trial whenever a judge becomes disabled prior to filing findings of fact and conclusions of law. Judge Loughlin denied the motion, however, and Home Placement now appeals, arguing that the Townsend case worked a substantial change in this court's interpretation of Rule 63 and that, under this new interpretation we had no choice but to order a new trial when we reversed Judge Boyle's original decision, found the Journal liable for a violation of the antitrust laws, and remanded the case to another trier for a determination of the appropriate relief.

B. Rule 63 and Its "Negative Inference".

Under Rule 63, if a judge becomes disabled after filing his or her findings of fact and conclusions of law in a civil case being tried without a jury, a successor judge may substitute for the original judge and complete any duties remaining in the case without holding a new trial. Nevertheless, the rule does empower the successor judge to grant a new trial if the remaining duties cannot otherwise be satisfactorily performed. Under the rule, the decision as to whether to hold a new trial is left entirely to the discretion of the successor judge. See Fed.R.Civ.P. 63.

As we have recognized, however, Rule 63 does not explicitly address the situation in which a judge becomes disabled prior to filing factual findings and legal conclusions. Townsend v. Gray Line Bus Co., 767 F.2d 11, 17 (1st Cir.1985). In Townsend, therefore, we joined numerous other courts of appeal in recognizing that if a presiding judge in a civil case becomes disabled prior to issuing findings of fact and conclusions of law, then a successor judge must ordinarily retry the case unless the parties stipulate otherwise. Id. (citing Whalen v. Ford Motor Credit Co., 684 F.2d 272 (4th Cir.1982) (en banc); Thompson v. Sawyer, 678 F.2d 257 (D.C.Cir.1982); Arrow-Hart, Inc. v. Philip Carey Co., 552 F.2d 711 (6th Cir.1977)). This result, we reasoned, flows from the "negative inference" of Rule 63: ⁴ because the plain language of Rule 63 permits a successor judge to exercise discretion in granting a new trial only when the presiding judge becomes disabled "after a verdict is returned or findings of fact and conclusions of law are filed," Fed.R.Civ.P. 63 (emphasis supplied), the implication must be that a new trial is ordinarily the norm when a successor judge takes a case prior to the filing of factual findings and legal conclusions. Townsend, 767 F.2d at 17.

Furthermore, the history of Rule 63 before the Advisory Committee on the Federal Rules of Civil Procedure, described by the Fourth Circuit in Whalen, 684 F.2d at 275-78, also supports the conclusion we reached in Townsend. At a meeting held in May, 1953, the Committee acknowledged that, unless the parties stipulated otherwise, Rule 63 required a case yet to be decided and interrupted by the disability of the trial judge to begin anew before a successor judge. Whalen, 684 F.2d at...