Winterland Concessions Co. v. Trela

• Decision Date: 17 May 1984
• Docket Number: No. 82-2229,82-2229
• Citation: 735 F.2d 257
• Parties: 1984-1 Trade Cases 66,006 WINTERLAND CONCESSIONS COMPANY, et al., Plaintiffs-Appellees, v. Edwin S. TRELA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 257

735 F.2d 257

1984-1 Trade Cases 66,006

WINTERLAND CONCESSIONS COMPANY, et al., Plaintiffs-Appellees, v. Edwin S. TRELA, Jr., Defendant-Appellant.

No. 82-2229.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 7, 1983.

Decided May 17, 1984.

Ed Trela, pro se.

James D. Adducci, Schuyler, Roche & Zwirmer, P.C., Chicago, Ill., for plaintiffs-appellees.

Before CUDAHY, ESCHBACH and COFFEY, Circuit Judges.

ESCHBACH, Circuit Judge.

In this civil action, Winterland Concessions Company ("Winterland") sued Edwin Trela, a T-shirt manufacturer, alleging violations of the Lanham Act, the Illinois Deceptive Practices Act, and the common-law right of publicity. Trela counterclaimed, alleging that Winterland had violated the civil rights and antitrust laws. The district court granted Winterland's request for a preliminary injunction, 528 F.Supp. 1201, and dismissed Trela's counterclaims. It also refused to grant Trela's motion to vacate or modify the preliminary injunction. Trela appeals both of these interlocutory orders.

We affirm the district court's order refusing to vacate or modify the injunction. We also affirm the order dismissing Trela's civil rights counterclaim. Because we believe that Trela's counterclaim for violations of the antitrust laws states a cause of action, we reverse the district court's dismissal of that claim and remand for further proceedings.

I.

Winterland manufactures, distributes, and retails T-shirts and jerseys bearing the names, likenesses, and logos of individual performers and musical groups with whom it has exclusive licensing arrangements. Although the company sells some shirts to stores, the majority of its sales are made at concerts given by its licensors. For this reason, Winterland has waged a continuing legal battle against T-shirt "bootleggers," who sell, outside the concert facilities, shirts bearing the performers' names and likenesses without authorization.

Edwin Trela operates a print shop which designs and sells specialty T-shirts. Many of Trela's shirts bear the names of Winterland's licensors. Trela also printed a line of shirts he called "Roc Rags," upon which he printed the performers' names, concert information, and advertisements.

On September 21, 1981, Winterland filed a complaint against various parties it claimed were involved in "bootlegging" activities. The complaint alleged violations of the Illinois Deceptive Practices Act, Ill.Rev.Stat. ch. 121 1/2, Sec. 312, the Lanham Act, 15 U.S.C. Sec. 1121, and the common-law right of publicity. The complaint was twice amended to add additional defendants, and Trela was added as a defendant on November 2, 1981.

On November 5 and 6, a hearing was conducted to determine whether Trela should be preliminarily enjoined from producing shirts which allegedly infringed on Winterland's licensing agreements, and on November 12, an injunction was issued prohibiting Trela from manufacturing or selling any upper-body garments bearing the names, likenesses, or logos of Winterland's licensors.

On March 31, 1982, Trela filed his answer and counterclaims, in which he alleged that Winterland, through its agents and attorneys, had violated the antitrust and civil rights laws. Winterland moved to dismiss the counterclaims for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). On April 23, 1982, Trela filed a motion to vacate or modify the preliminary injunction. On July 22, 1982, the district court entered an order dismissing the counterclaims and denying Trela's motion to vacate or modify the injunction. It is from these orders that Trela appeals.

II.

A. Denial of Motion to Vacate or Modify the Preliminary Injunction

Trela did not appeal from the entry of the preliminary injunction. Accordingly, our review of the denial of his motion to vacate or modify the injunction does not extend to the propriety of the entry of the injunction itself. Instead, we are limited to inquiring whether Trela has demonstrated that changed circumstances make the continuation of the injunction inequitable. Merrell-National Labor, Inc. v. Zenith Labor, Inc., 579 F.2d 786 (3d Cir.1978); Squillacote v. Local 248, Meat & Allied Food Workers, 534 F.2d 735, 750 (7th Cir.1976).

Trela presented no new facts to the district court which would justify modification of the preliminary injunction. Instead, he repeated his view that the law did not support entry of the injunction in the first place. However, "[t]he motion [to modify an injunction] does not force the trial judge to permit relitigation of his original determination" that the injunction should issue, Merrell-National Labor, supra, 579 F.2d at 791, and the district court was correct in refusing to allow such relitigation in this case.

Trela also argues that the preliminary injunction should be vacated because he did not have a meaningful opportunity to participate in the preliminary injunction hearing. An examination of the record, however, demonstrates that Trela actively participated in the hearing, albeit pro se. Alternatively, Trela argues that the district court improperly received "illegally seized" evidence at the hearing. The evidence of which Trela complains was obtained through a search conducted by U.S. Marshals pursuant to a valid seizure order entered October 27, 1981. Even assuming, arguendo, that there was some impropriety in the seizure of Trela's property on October 27, it is clear that "the Fourth and Fourteenth Amendments do not require in civil cases that the exclusionary rule be extended to situations where private parties seek to introduce evidence obtained through unauthorized searches made by state officials." Honeycutt v. Aetna Insurance Co., 510 F.2d 340, 349 (7th Cir.) (emphasis in original), cert. denied, 421 U.S. 1011, 95 S.Ct. 2416, 44 L.Ed.2d 679 (1975).

We find no error in the district court's refusal to vacate or modify the preliminary injunction.

B. Dismissal of Trela's Counterclaims

1. Appealability of the Dismissal Order

Before we discuss the merits of the district court's dismissal of Trela's counterclaims, we must first determine whether we have jurisdiction to review the dismissal order at this time. Trela's counterclaims sought injunctive relief against Winterland for actions alleged to violate the civil rights and antitrust laws, as well as damages for the alleged antitrust violation and attorney's fees. As Winterland's claims against Trela remain pending, the parties agree that we may review the dismissal, if at all, only under the limited exception to the final order rule for orders denying injunctions, 28 U.S.C. Sec. 1292(a)(1). ¹

The Supreme Court has long held that an order dismissing a counterclaim which sought injunctive relief against a single plaintiff was immediately appealable as an order denying an injunction. General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 433, 53 S.Ct. 202, 203, 77 L.Ed. 408 (1932). The courts of appeals have reviewed such dismissals where the district court's order necessarily denied all the injunctive relief requested, see, e.g., Perfect Fit Industries, Inc. v. Acme Quilting Co., Inc., 618 F.2d 950 (2d Cir.1980), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 71 (1982); Williams v. St. Louis Diecasting Corp., 611 F.2d 1223 (8th Cir.1979); Lair v. Fauver, 595 F.2d 911 (3d Cir.1979), or severely restricted the scope of the requested relief, see, e.g., Build of Buffalo v. Sedita, 441 F.2d 284 (2d Cir.1971) and cases cited therein. Cf. Western Geophysical Co. v. Bolt, 440 F.2d 765 (2d Cir.1971) (where less than all counterclaims requesting injunctive relief dismissed, no appeal allowed).

The Supreme Court has recently made clear, however, that not all interlocutory orders that have the effect of denying an injunction are immediately appealable under Sec. 1292(a)(1). In Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978), the Court held that no jurisdiction existed under that statute to review a district court order denying class certification. In refusing to certify the class, the district court was not required to reach the merits of petitioner's claim. Further, the Court determined that no irreparable harm would result from denying review of the propriety of certification until after final judgment was entered in the case. In Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), the Court found jurisdiction under Sec. 1292(a)(1) where petitioner appealed a refusal by the district court to approve a settlement agreement in a Title VII case. The Court explained that while the effect of the order was merely to force the parties to trial, severe, perhaps irreparable, injury to the petitioner would occur if the refusal could not be reviewed until after final judgment was entered.

Gardner and Carson both reflect the Court's concern that Sec. 1292(a)(1) be approached with caution "lest a floodgate be opened that brings into the exception many pretrial orders." Switzerland Cheese Assoc., Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966) (order denying summary judgment not appealable as order denying an injunction; denial not decision on merits but only decision that parties proceed to trial). Winterland suggests that the effect of these recent cases is to preclude our review of the dismissal of Trela's counterclaims--in effect, that General Electric Co. v. Marvel Rare Metals Co., supra, has been overruled sub silentio. We must therefore assess what effect these decisions have had on the continuing vitality of Marvel.

We note that in recent cases denying interlocutory appeal of orders which have the effect of denying an injunction, the Court has not found jurisdiction under Sec. 1292(a)(1) when the order appealed failed to address the merits of the case, Gardner, supra; Carson, supra. Such an order is immediately appealable only if the appellant can show the order might...