Outlet Communications v. King World Productions

• Decision Date: 31 March 1988
• Docket Number: No. 85-1181-CIV-ORL-18.,85-1181-CIV-ORL-18.
• Citation: 685 F. Supp. 1570
• Parties: OUTLET COMMUNICATIONS, INC., Plaintiff, v. KING WORLD PRODUCTIONS, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

685 F. Supp. 1570

OUTLET COMMUNICATIONS, INC., Plaintiff, v. KING WORLD PRODUCTIONS, INC., Defendant.

No. 85-1181-CIV-ORL-18.

United States District Court, M.D. Florida Orlando Division.

March 31, 1988.

Certified For Partial Publication.

Norman H. Singer, Sundlun, Scher & Singer, Washington, D.C., John M. Robertson, Robertson, Williams, Duane & Lewis, Orlando, Fla., for plaintiff.

Brenda D. Harms, Lawrence I. Fox, Robert A. Weiner, Berger & Steingut, New York City, Davisson F. Dunlap, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, Fla., for defendant.

Anthony E. DiResta, Atlanta, Ga., John J. Upchurch, Daytona Beach, Fla., for Cox Communications, Inc., Licensee of WFTV.

ORDER

GEORGE KENDALL SHARP, District Judge.

This action is before the court upon defendant's motion for judgment on the pleadings (Doc. 11) and defendant's motion for pretrial conference (Doc. 111). Plaintiff has opposed both motions (Docs. 13, 112). Defendant was permitted to file a reply memorandum in support of its motion for judgment on the pleadings (Doc. 18).

Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, defendant's motion for judgment on the pleadings requests dismissal from plaintiff's complaint of Count I, breach of contract; Count III, antitrust violations; and Count IV, RICO claim. The court may consider only the pleadings, that is the complaint and answer, in deciding a Rule 12(c) motion for judgment on the pleadings. Fed.R.Civ.P. 12(c); see Hill v. Linahan, 697 F.2d 1032, 1034 (11th Cir.1983) (per curiam). "The fact allegations of the complaint are to be taken as true, but those of the answer are taken as true only where and to the extent that they have not been denied or do not conflict with those of the complaint." Stanton v. Larsh, 239 F.2d 104, 106 (5th Cir.1956); Bass v. Hoagland, 172 F.2d 205, 207 (5th Cir.), cert. denied, 338 U.S. 816, 70 S.Ct. 57, 94 L.Ed. 494 (1949); see Swerdloff v. Miami National Bank, 584 F.2d 54, 57 (5th Cir.1978); Kohen v. H.S. Crocker Co., 260 F.2d 790, 792 (5th Cir.1958). In order to prevail, a motion for judgment on the pleadings "must be based on the undisputed facts appearing in all the pleadings." Stanton, 239 F.2d at 106.

Furthermore, the court is obliged to scrutinize the complaint, construed in plaintiff's favor, and to allow it to stand "if plaintiff might recover under any state of facts which could be proved in support of the claim." General Guaranty Insurance Co. v. Parkerson, 369 F.2d 821, 825 (5th Cir. 1966); Swerdloff, 584 F.2d at 60; see Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) ("The purpose of pleading is to facilitate a proper decision on the merits."). In reversing and remanding the district court's granting defendant's motion for judgment on the pleadings, the former Fifth Circuit stated:

The posture of the case requires us to consider whether plaintiffs could prove any set of facts which would permit recovery.... We make no suggestion as to whether such facts can be proven in this case. We merely hold that in our view of the law sufficient facts might possibly be shown under the cause of action here alleged to permit recovery and defendant was not entitled to judgment as a matter of law at the pleading stage of the proceeding.

Swerdloff, 584 F.2d at 60 (emphasis in original). In essence, the court must examine the pleadings to determine whether any set of facts would permit plaintiff to recover as a matter of law. See International Union of District 50, United Mine Workers v. Bowman Transportation, Inc., 421 F.2d 934, 935 (5th Cir.1970) (per curiam); Security Life & Accident Insurance Co. v. United States, 357 F.2d 145, 150 (5th Cir. 1966).

Pursuant to the stringent requirements that govern granting a motion for judgment on the pleadings, the court will analyze the three counts, which defendant seeks to dismiss from plaintiff's complaint. For purposes of deciding the motion for judgment on the pleadings, the court must accept the facts stated in plaintiff's complaint as true. Two license agreements between the parties are attached to plaintiff's complaint; no exhibits are attached to defendant's answer.

The first count in question is Count I, plaintiff's breach of contract claim. This action concerns two consecutive, one-year license agreements between plaintiff's Orlando and CBS television affiliate, WCPX, and defendant, a national programming distributor, for the television game show, WHEEL OF FORTUNE. Defendant is the exclusive distributor of WHEEL OF FORTUNE, which it licenses to various network affiliated stations and to independent stations. WHEEL OF FORTUNE premiered in broadcast year 1983-1984, which was its first season of syndication. Since the beginning of 1984, WHEEL OF FORTUNE has had the highest audience rating of any syndicated television show according to audience ratings published by Arbitron and A.C. Nielsen Company.

The court is precluded from addressing the merits of plaintiff's breach of contract count, alleging that it, as initial subscriber to a new first-run program, had an exclusive right to renewals based upon trade usage, because of the described pleading and procedural defect. In deciding a motion for judgment on the pleadings, the court may consider exhibits to the pleadings as part of the pleadings. Fed.R. Civ.P. 10(c); see Dyal v. Union Bag-Camp Paper Corp., 263 F.2d 387, 391 (5th Cir. 1959). The court may not consider, however, matters outside the pleadings in a motion for judgment on the pleadings. Fed.R.Civ.P. 12(c); Fidelity & Deposit Co. v. Southern Utilities, Inc., 726 F.2d 692, 693 (11th Cir.1984); see Galanti v. United States, 709 F.2d 706, 709 n. 3 (11th Cir. 1983), cert. denied, 465 U.S. 1024, 104 S.Ct. 1279, 79 L.Ed.2d 683 (1984); Hill, 697 F.2d at 1034. Since the court has not been provided either license agreement in full with the pleadings, it cannot decide the motion for judgment on the pleadings regarding the breach of contract count. Therefore, defendant's motion for judgment on the pleadings as to Count I, breach of contract, is DENIED.

Count III of plaintiff's complaint contains allegations of antitrust violations, pursuant to section 1 et seq. of the Sherman Act, 15 U.S.C. § 1 et seq., and section 3 of the Clayton Act, 15 U.S.C. § 14. Plaintiff's opposition to defendant's motion for judgment on the pleadings, however, states that, since its Clayton Act, section 3 claim is "entirely duplicative" of its Sherman Act, section 1 claim, plaintiff "will only press its claim under § 1." (Plaintiff's Opposition to Defendant's Motion for Judgment on the Pleadings, at p. 7, n. 6). Therefore, the court will consider that plaintiff has abandoned its antitrust claim, pursuant to section 3 of the Clayton Act, and that the remaining antitrust allegation in plaintiff's complaint regards section 1 of the Sherman Act.

The alleged antitrust violation derives from the purported negotiations for plaintiff's licensing WHEEL OF FORTUNE from defendant for the 1985-1986 broadcast year. Plaintiff alleges that defendant represented that it would negotiate exclusively with plaintiff for renewal of WHEEL OF FORTUNE only if plaintiff would license two additional game shows, JEOPARDY! and HEADLINE CHASERS, from defendant. Plaintiff claims that defendant's stated price for WHEEL OF FORTUNE alone was not economically viable and that the package of the three game shows was its only alternative.

Plaintiff contends that defendant's newly added conditions, regarding licensing WHEEL OF FORTUNE for the 1985-1986 year, constituted negotiation in bad faith with disregard for plaintiff's rights pursuant to the parties' two previous license agreements, their course of dealing, and industry practices. Plaintiff claims that defendant has continued to refuse to negotiate a license agreement with plaintiff for WHEEL OF FORTUNE without the additional conditions. Upon information and belief, plaintiff alleges that defendant negotiated with its Orlando/Daytona Beach television market competitor, SFN Communications of Florida, Inc., licensee of WFTV, the ABC affiliate, for licensing WHEEL OF FORTUNE, JEOPARDY!, and HEADLINE CHASERS. Plaintiff further alleges that WFTV and others, whose identities are unknown, in other television markets have acquiesced to defendant's tie-in arrangement. Plaintiff contends that WFTV (and others) will be able to capitalize on and to benefit from the good will and audience acceptance of WHEEL OF FORTUNE that it established in the Orlando/Daytona Beach market and, thereby, plaintiff will lose viewers and advertisers.

Plaintiff alleges that defendant has entered into a per se illegal tie-in violation of section 1 of the Sherman Act by licensing WHEEL OF FORTUNE to WFTV and others with the condition that they also license JEOPARDY! and HEADLINE CHASERS from defendant. Such combinations, agreements, and contracts, plaintiff contends, were for the purpose and had the effect of restraining interstate and foreign trade and commerce in the license of first-run television programming to network affiliates and independent stations in the United States. Plaintiff claims that defendant possesses an unfair economic advantage over its competitors in the market because of its position as sole distributor of WHEEL OF FORTUNE and the success of that game show, and that it coerced the tie-in license agreement that resulted in WHEEL OF FORTUNE being obtained by a competitor of its affiliate, or WFTV. As a result of defendant's actions, plaintiff alleges that it will lose audience and advertising revenues in excess of $1,000,000.00 for commercial time during the telecast of WHEEL OF FORTUNE as well as for prior and subsequent programming. Plaintiff also claims treble damages, interest, attorneys' fees and costs, pursuant to section 4 of the Clayton Act, 15 U.S.C. § 15.

With respect to allegations regarding the parties' two prior license agreements, the court faces the same...