Taylor Pub. Co. v. Jostens, Inc.
| Decision Date | 14 January 1999 |
| Docket Number | No. 4:97CV11.,4:97CV11. |
| Citation | 36 F.Supp.2d 360 |
| Parties | TAYLOR PUBLISHING COMPANY, Plaintiff, v. JOSTENS, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Texas |
George C. Lamb, III, Tracy L. Silva, Baker & Botts, Dallas, TX, R. Hewitt Pate, Hunton & Williams, Richmond, VA, David M. Aronowitz, Dublin, OH, for plaintiff.
Jeffrey J. Keyes, James Long, Briggs & Morgan, Minneapolis, MN, Clyde Moody Siebman, Carol Siebman, Siebman & Siebman, Sherman, TX, for defendant.
Plaintiff, Taylor Publishing Company, and Defendant, Jostens, Inc., are competitors in the manufacture and sale of scholastic yearbooks. The major competitors in the yearbook market are Plaintiff, Defendant, Herff-Jones, Lifetouch, and Walsworth. Defendant and Plaintiff hold the number one and number two market positions, respectively.
Plaintiff brought claims for damages against Defendant alleging that Defendant violated federal law by attempting to monopolize the national yearbook market in violation of Section 2 of the Sherman Antitrust Act and by engaging in price discrimination in violation of the Robinson-Patman Act. Additionally, Plaintiff claimed Defendant violated Texas state law by tortiously interfering with Plaintiff's contracts, by conspiring and knowingly participating in the breach of fiduciary duties owed to Plaintiff by Plaintiff's former employees, and by engaging in unfair competition.
For purposes of Plaintiff's attempted monopolization claim, the parties agreed that the relevant geographic market was limited to sales within the United States, however, the parties disagreed as to the relevant product market. Plaintiff contended that the product market was limited to "yearbooks," those products prepared by students, with some teacher input, that incorporate individual student pictures as well as candid shots of various activities within the school. Plaintiff argued that "picture books," those products usually limited to individual student pictures and often prepared by teachers with little or no input from students, should not be included in the product market. On the other hand, Defendant claimed the relevant product market included both yearbooks and picture books.
The case was tried with a jury beginning on May 4, 1998. At trial, Plaintiff focused on its attempted monopolization claim. Plaintiff claimed that Defendant planned to eliminate Plaintiff from the market and implemented such plan by the use of many predatory practices. The predatory conduct asserted by Plaintiff included that Defendant: (1) engaged in sham and predatory pricing; (2) raided Plaintiff's sales force; (3) acquired Plaintiff's confidential information by illegal means; (4) interfered with Plaintiff's contracts; and (5) committed predatory disparagement of Plaintiff. The remainder of Plaintiff's causes of action were based on these same acts.
On May 8, Defendant orally moved and submitted a written motion for judgment as a matter of law (collectively "pre-verdict motion"), which the Court took under advisement. On May 12, the last day of trial, the Court denied Defendant's pre-verdict motion, and the case was submitted to the jury. The jury returned with a verdict containing findings against Defendant on all claims except Plaintiff's state law claim that Defendant tortiously interfered with contracts between Plaintiff and its customers. On June 12, 1998, the Court entered judgment only upon the jury's verdict as to Plaintiff's attempted monopolization claim because all other claims on which the jury found in favor of Plaintiff overlapped this claim.
Defendant files the current motion and renews its Motion for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50.1 Defendant contends Plaintiff's case fails on the following four essential grounds: (1) Plaintiff failed to offer evidence of legally cognizable predatory conduct to sustain an attempt to monopolize claim or Plaintiff's state law claims; (2) Plaintiff failed to show a dangerous probability of monopolization; (3) Plaintiff's case was devoid of minimal proof of causation of damage, fact of injury, or antitrust injury; and (4) Plaintiff's damage claim which went to the jury was fraught with error and based on guesswork and speculation.
In its response, Plaintiff asserts that due to procedural defects, Defendant waived the right to assert the present motion. In the absence of a finding of waiver, Plaintiff urges the Court to deny Defendant's motion because the evidence supports the jury's verdict.
Judgment as a matter of law is proper if "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." FED.R.CIV.P. 50(a)(1). The standard of review for judgment as a matter of law is as follows:
[T]he court should consider all of the evidence — not just that evidence which supports the non-mover's case — in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting [judgment as a matter of law] is proper. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, [judgment as a matter of law] should be denied.... [I]t is the function of the jury as the traditional finder of facts, and not the court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997).
As a preliminary matter, the Court will address Plaintiff's contention that Defendant waived its right to assert the pending motion, then the Court will discuss Defendant's motion.
Plaintiff claims Defendant waived the present Motion for Judgment as a Matter of Law due to two procedural defects. First, Plaintiff complains that Defendant's pre-verdict motion was not made or renewed at the close of all the evidence, therefore, the motion now pending before the Court is waived. Second, Plaintiff contends that Defendant's motion raises matters that were not stated as grounds in the pre-verdict motion. Two significant examples Plaintiff points out are that Defendant's pre-verdict motion did not challenge the sufficiency of the evidence regarding predatory conduct asserted by Plaintiff nor the amount of damages awarded by the jury. Because these matters were not raised in the pre-verdict motion, Plaintiff argues they cannot now be considered by the Court.
Rule 50 of the Federal Rules of Civil Procedure provides in part:
(a)(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.
(b) If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion.
In evaluating the procedural requirements of Rule 50, the Fifth Circuit holds that the failure to request judgment as a matter of law at the close of all the evidence waives judgment as a matter of law after the jury verdict. See Tamez v. City of San Marcos, Texas, 118 F.3d 1085, 1089 (5th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1073, 140 L.Ed.2d 132 (1998). However, in Tamez, the Fifth Circuit acknowledged an exception to this rule and noted the following facts as being pertinent to evaluating whether a de minimis exception from non-compliance with Rule 50(b) exists:
(1) we concluded that allowing the motion would satisfy the purposes (if not the letter) of Rule 50; (2) the trial court had reserved, not denied, a motion for [judgment as a matter of law] at the close of the plaintiff's case; (3) the defendant called no more than two witnesses before closing; (4) only a few minutes elapsed between the motion for [judgment as a matter of law] and the conclusion of all the evidence; and (5) the plaintiff introduced no rebuttal evidence.
Tamez, 118 F.3d at 1090. Another requirement of Rule 50 provides that a post-trial motion for judgment as a matter of law cannot assert a ground not included in a pre-verdict motion. Dimmitt Agri Indus., Inc. v. CPC Intern. Inc., 679 F.2d 516, 521 (5th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1983). The rationale for this rule is to avoid ambushing the trial court and opposing counsel. Id.
Regarding Plaintiff's first contention, Defendant responds that it fully complied with all requirements for the preservation of its right to judgment as a matter of law and outlines the following procedural facts. On May 8, 1998, the Court stated in response to Defendant's inquiry about scheduling the argument on Defendant's pre-verdict motion that the Court would "consider for the record that your motion is timely filed, and that it probably would be better for my schedule to consider after we finish the evidence." R. at 1142:24-143:2. At that time, it was anticipated that all of the evidence would be finished that afternoon. Later that day, after Defendant finished its defense and Plaintiff finished its rebuttal evidence, it became apparent that some short video depositions, which Plaintiff was...
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Taylor Publishing Co. v. Jostens Inc.
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