Nor-West Cable Communications Partnership v. City of St. Paul

• Decision Date: 25 January 1991
• Docket Number: No. 89-5184,NOR-WEST,R-WEST,89-5184
• Citation: 924 F.2d 741
• Parties: CABLE COMMUNICATIONS PARTNERSHIP, a general partnership, Appellant, v. CITY OF ST. PAUL, a City of the First Class, Appellee, and Continental Cablevision of St. Paul, Inc., Intervenor-Defendant Below, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 741

924 F.2d 741

NOR-WEST CABLE COMMUNICATIONS PARTNERSHIP, a general partnership, Appellant, v. CITY OF ST. PAUL, a City of the First Class, Appellee, and Continental Cablevision of St. Paul, Inc.,

Intervenor-Defendant Below, Appellee.

No. 89-5184.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1990.

Decided Jan. 25, 1991.

Harold R. Farrow, Walnut Creek, Cal., for appellant.

Earnest I. Reveal, St. Paul, Minn., for City of St. Paul.

Gardiner Gillespie, Washington, D.C., for Continental Cablevision.

Before McMILLIAN and ARNOLD, Circuit Judges, and HEANEY, Senior Circuit Judge.

McMILLIAN, Circuit Judge.

Nor-West Cable Communications Partnership ("Nor-West") appeals a judgment of the United States District Court for the District of Minnesota. ¹ See Nor-West Cable Communications Partnership v. City of St. Paul, No. 3-83-Civ. 1228 (D.Minn. Sept. 1, 1988) (order for judgment) (Nor-West I ). On appeal, Nor-West argues that the district court erred in upholding the jury's answers to various "special verdict" questions and in denying Nor-West's motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. For the reasons stated below, we affirm.

I. Facts

In 1979, the City of St. Paul, Minnesota, issued a "request for proposals" (RFP) to companies interested in providing a cable television service to St. Paul. Although several companies filed proposals, the City decided to operate its own cable system. After the City's "municipal ownership" plan was rejected in a referendum, the St. Paul City Council voted to award a single, non-exclusive franchise to a private cable operator, and a new RFP was issued. Numerous companies filed proposals, including Continental Cablevision of St. Paul, Inc. ("Continental"), and Nor-West. The City Council passed a resolution awarding the franchise to Nor-West, but the Mayor of St. Paul vetoed the resolution, and the City Council then awarded the franchise to Continental. This decision was affirmed by the Minnesota Cable Communications Board and by the Minnesota Supreme Court. See Cable Communications Board v. Nor-West Cable Communications Partnership, 356 N.W.2d 658 (Minn.1984).

On September 2, 1983, Nor-West filed the present lawsuit against Continental and the City (collectively "defendants"), alleging violations of due process, equal protection, the first amendment, and the Sherman Antitrust Act, 15 U.S.C. Secs. 1, 2 (1988), as well as pendent state claims. Shortly thereafter, Nor-West's counsel requested that the City award a second, competing franchise to Nor-West. Defendants moved to dismiss, and the district court granted the motion. We reversed and remanded, ordering the district court to reconsider Nor-West's claims in light of a recent Supreme Court case. See Nor-West Cable Communications v. City of St. Paul, 802 F.2d 462 (8th Cir.1986) (unpublished) (reversing and remanding case to district court), citing City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986) (requiring "thoroughly developed record" in first amendment cases).

On remand, the district court proceeded to trial on Nor-West's first amendment and equal protection claims, and dismissed Nor-West's other claims. After an eight-week trial, the district court submitted the case to the jury on special verdicts. The jury found that Nor-West spent $265,000.00 in seeking the cable television franchise, but also found that Nor-West was never willing, nor technically or financially able to build a competitive cable system, and that it was therefore not damaged by the City's failure to award it a second cable franchise.

In Nor-West I, the district court adopted the jury's factual findings, holding that it was both "bound [and] ... chooses to be bound by the jury's findings." Slip op. at 6. Specifically, the district court held, based on Special Verdicts Nos. 5-7, id. at 11, that Nor-West was not willing or able to build a competitive cable system. The district court went on to hold that because Nor-West was unwilling and unable to compete, it lacked standing to challenge Continental's cable monopoly. The district court further held that Nor-West was not entitled to damages for its expenditures in pursuit of the cable monopoly, because "unsuccessful bidders are not entitled to recover damages." Id. at 9. The district court also dismissed Continental as a defendant, on the basis that "[n]o injunctive or monetary relief was sought from Continental." Id. at 1 n. 1.

Nor-West then moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The district court denied Nor-West's motion. See Nor-West Cable Communications Partnership v. City of St. Paul, No. 3-83-Civ. 1228 (D.Minn. Feb. 27, 1989) (order) (Nor-West II ). This appeal followed.

II. Issues

On appeal, Nor-West contends that: (1) the district court erred in holding that Nor-West lacked standing to sue, (2) even if Nor-West lacked standing to challenge the City's refusal to grant a competitive franchise, it had standing to request damages for the $265,000.00 it spent in pursuit of a cable monopoly, (3) the district court's pre-trial discovery order erroneously limited Nor-West's right to present expert witnesses, (4) the district court submitted numerous erroneous instructions and special verdicts to the jury, (5) the district court erroneously excluded certain evidence, and (6) that if damages should have been awarded against the City, Continental should also be liable for damages. Each of these arguments will be addressed in turn.

A. Standing

The jury answered Special Verdicts Nos. 1-3 and Nos. 5-7 as follows:

1. Did Nor-West have the financial ability necessary to design, construct and operate the cable television system which Nor-West requested permission to build after August 2, 1983, in competition with Continental Cablevision in St. Paul?

NO

2. Was Nor-West capable of obtaining and providing the technical capability necessary to design, construct and operate the cable television system which Nor-West requested permission to build after August 2, 1983, in competition with Continental Cablevision in St. Paul?

NO

3. If Nor-West had been given the opportunity to build the cable television system it requested permission to build after August 2, 1983, in competition with Continental Cablevision, would Nor-West have built the system?

NO

5. At this time, does Nor-West have the financial ability necessary to design, construct and operate the cable television system it has requested permission to build in competition with Continental Cablevision in St. Paul?

NO

6. At this time, is Nor-West capable of obtaining and providing the technical capability necessary to design, construct and operate the cable television system it has requested permission to build in competition with Continental Cablevision in St. Paul?

NO

7. If Nor-West were given the opportunity at this time to build the cable television system it has requested permission to build in competition with Continental Cablevision in St. Paul, would Nor-West build such a system?

NO

Nor-West I, slip op. at 1-2. After trial, Nor-West asserted that the jury's answers were merely advisory. The district court rejected this view, holding that "the court is bound by the jury's findings. Further, the court chooses to be bound by the jury's findings." Id. at 6. Based on the jury's findings that Nor-West was not "ready, willing and able to operate a [competitive] cable television system," id. at 8, the district court held that Nor-West did not have standing to sue. In denying Nor-West's motion for judgment n.o.v. or a new trial, the district court reiterated its view that Nor-West lacked standing. See Nor-West II, slip op. at 4-9.

On appeal, Nor-West argues that (1) the district court failed to independently review the jury's findings, (2) we must review the district court's findings de novo, (3) the district court erred in finding that Nor-West was neither able nor willing to build or operate a competitive cable system, (4) Nor-West has standing because it was denied the opportunity to compete, even if it were neither able nor willing to do so, (5) post-trial determinations of standing are impermissible, and (6) even if Nor-West has suffered no injury itself, it has standing to sue on behalf of St. Paul cable television consumers, who were allegedly injured by the absence of competition in St. Paul. Each of these issues will be addressed below.

1. District Court Review of Jury Findings

Where a case has been submitted to the jury on special verdicts pursuant to Fed.R.Civ.P. 49(a), the jury's findings are usually binding on the district court unless they are against the weight of the evidence. See, e.g., Ryan v. McDonough Power Equipment, Inc., 734 F.2d 385, 388 (8th Cir.1984) (affirming district court rejection of jury's special verdict as "against the great weight of the evidence"). Nor-West contends, however, that in cases involving the first amendment, the district court must review the jury's findings de novo and failed to do so in the present case.

In support of the first proposition, Nor-West relies on the case of Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (Bose ). In Bose, the defendant allegedly made false statements about loudspeakers manufactured by the plaintiff, and the plaintiff filed suit for product disparagement. The district court entered judgment for the plaintiff after a bench trial, holding that the plaintiff had proven, inter alia, that the defendant had published its statements with "actual malice." ² The First Circuit reversed, holding that its review of the district court's "actual malice" determination was not limited to the "clearly erroneous" standard traditionally governing factual determinations in bench trials. The Supreme Court agreed, holding that:

the clearly erroneous standard of ...