Tele-Communications of Key West, Inc. v. U.S., TELE-COMMUNICATIONS

Citation244 U.S. App. D.C. 335,757 F.2d 1330
Decision Date02 April 1985
Docket NumberTELE-COMMUNICATIONS,No. 84-5008,84-5008
Parties, 1 Fed.R.Serv.3d 960 OF KEY WEST, INC., Appellant v. UNITED STATES of America et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 83-3722).

Jay L. Cohen, Washington, D.C., with whom Fred Israel, Washington, D.C., was on the brief, for appellant. Alan R. Plutzik, Washington, D.C., entered an appearance for appellant.

Stuart H. Newberger, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before WRIGHT and MIKVA, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

This is an appeal from a District Court order dismissing, for failure to state a claim, a complaint filed by Tele-Communications of Key West, Inc. (TCI), a purveyor of cable television service. The issue presented is whether the dismissal was, in fact, proper under Federal Rule of Civil Procedure 12(b)(6). As discussed below, we hold that the District Court erroneously dismissed TCI's First and Fifth Amendment claims but properly dismissed TCI's statutory antitrust claim. Consequently, we affirm in part and reverse and remand in part.

I. BACKGROUND

The undisputed facts underlying this case are as follows. For ten years, from 1974 through 1983, TCI (and its predecessor-in-interest) provided cable television service to Homestead Air Force Base in Florida. In June of 1983, however, the Air Force requested bids for cable television service to the base from a variety of parties. After receiving bids, the Air Force awarded an exclusive service contract to another company and ordered TCI to remove its cables and other equipment from the base's cable television right-of-way by the end of December 31, 1983. 1

On December 13, 1983, TCI filed an action in the District Court here requesting injunctive and declaratory relief. See Complaint for Declaratory and Injunctive Relief for Injury to First Amendment Rights, Fifth Amendment Rights and Antitrust Violations, Appendix (App.) at B. Specifically, TCI requested an order requiring the Air Force to allow TCI to leave its cable equipment where it was; such an order would have enabled TCI to continue service to the base. See Complaint, supra, at 9. TCI also requested that the court issue a declaratory judgment to the effect that any attempt on the part of the Air Force to prevent TCI from continuing to serve those on the base who desired such service would violate TCI's First and Fifth Amendment rights and the Sherman Antitrust Act. See id. at 8-9.

The same day TCI also filed a motion for a preliminary injunction, contending that it would be irreparably harmed if it was not granted relief by December 31, 1983. See Motion for Preliminary Injunction. The next day, December 14, 1983, a hearing on this motion was set for December 27, 1983.

On December 23, 1983, the Air Force filed a motion to dismiss TCI's entire complaint for failure to state a claim or, in the alternative, for summary judgment. TCI, on December 27, 1983, then filed an opposition to the motion to dismiss and a motion to strike the Air Force's motion for summary judgment or, in the alternative, for a discovery and briefing schedule for cross-motions for summary judgment. In these responses TCI asserted that the standard for dismissal had not been met and that the standard and procedures for summary judgment had not been complied with. See Opposition to Defendants' Motion to Dismiss Under Rule 12(b)(6); Plaintiff's Motion and Memorandum of Points and Authorities to Strike Defendants' Motion for Summary Judgment or, in the Alternative, for a Discovery and Briefing Schedule for Cross-Motions for Summary Judgment.

On December 27, 1983, the District Court heard oral argument on TCI's motion for a preliminary injunction and on the Air Force's motion to dismiss. At that time the court observed that it would not dispose of the case on summary judgment because to do so would be unfair. See Excerpt of Proceedings at 3, App.L. The next day, December 28, 1983, the District Court issued an order and memorandum opinion dismissing the complaint and denying the request for a preliminary injunction. See Tele-Communications of Key West, Inc. v. United States, 580 F.Supp. 11 (D.D.C.1983).

TCI now appeals from the dismissal of its claims for permanent injunctive and declaratory relief, asserting that that dismissal was erroneous under the Rule 12 standards or as a summary judgment. The Air Force, on the contrary, defends the District Court's decision as procedurally proper and substantively correct. After determining the correct standard of review and evaluating the propriety of the District Court's decision, we will examine the District Court's disposition of each of TCI's claims.

II. THE STANDARD FOR OUR REVIEW OF THE DISTRICT COURT'S DECISION

TCI's first contention on appeal is that reversal is required because the District Court erroneously considered materials outside the pleadings in considering the motion to dismiss. The Air Force does not disagree with the proposition that the District Court had such external materials before it at the time it was contemplating the motion to dismiss; the Air Force explains this phenomenon by noting that TCI's request for a preliminary injunction was before the court at the same time and that the Air Force presented extra-pleading materials in opposing that motion. See brief for appellees at 5 n. 3. The Air Force apparently contends, however, that the District Court did in fact, in its review of the motion to dismiss, take all the facts alleged in TCI's complaint as true. See id. at 5. Based on this interpretation of the District Court's decision, the Air Force disagrees with TCI's contention that reversal is mandated. The Air Force also contends in the alternative that if the District Court did consider materials outside of TCI's complaint, the District Court's decision should be affirmed as a summary judgment. See id. at 5 n. 3.

We conclude that, in the circumstances of this case, the dismissal cannot properly be treated as a summary judgment, even if materials outside of TCI's complaint were considered by the District Court. We also conclude, however, that although consideration of external materials is improper under a Rule 12(b)(6) motion to dismiss, reversal based on such consideration alone would serve no useful purpose. Where such consideration has occurred, rather, normal 12(b)(6) review will be in order.

A. Potential for Reviewing the District Court Decision as a Summary Judgment

The normal course of action when materials outside the complaint are considered is for a nominal motion to dismiss to be treated as a motion for summary judgment. As Rule 12(b) states, "If, on a [Rule 12(b)(6) motion], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." See also Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972) (per curiam ); Shehadeh v. Chesapeake & Potomac Tel. Co. of Md., 595 F.2d 711, 719 n. 41 (D.C.Cir.1978); Scanwell Laboratories, Inc. v. Thomas, 521 F.2d 941, 949 (D.C.Cir.1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976).

There are constraints on a court's ability to thus transform a motion to dismiss, however. Specifically, Rule 12(b) provides further that, if a motion to dismiss is converted to a motion for summary judgment, "all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56." See also Gordon v. Nat'l Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982). Under Rule 56 such materials include affidavits and documentary evidence that would show that a genuine issue of material fact existed. Rule 56 contains a similar but more explicit constraint: "The motion [for summary judgment] shall be served at least 10 days before the time fixed for the hearing [on the motion]." Rule 56(c).

Thus a reviewing court should not automatically treat a dismissal where external materials were not excluded as a summary judgment, although such treatment may be the most common result of such a situation. Rather, the reviewing court must assure itself that summary judgment treatment would be fair to both parties in that the procedural requirements of the applicable rules were observed.

Here, treatment of the dismissal as a summary judgment would not be appropriate. The motion was served on TCI on December 23, 1983, and argument was heard on December 27, 1983--a mere four days later. This scheduling complies with neither the explicit 10-day requirement of Rule 56(c) nor the reasonable-period-for-response requirement of Rule 12(b). (The four-day period, as TCI notes in its brief, spanned a weekend and included Christmas and Christmas Eve.) Consequently, the motion cannot properly be recast as a motion for summary judgment, and the District Court's decision must stand or fall as a pure Rule 12(b)(6) dismissal.

B. Review of the District Court Decision as a Dismissal under Rule 12(b)(6)

As recently reaffirmed by this court, "Dismissal for failure to state a claim for relief is proper only when 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' All factual doubts must be resolved and all inferences made in favor of the plaintiff[ ]." Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1506 (D.C.Cir.1984) (en banc ) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (emphasis added by the Ramirez court; footnotes omitted)). ...

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