WIXT Television, Inc. v. Meredith Corp.

• Decision Date: 12 December 1980
• Docket Number: No. 78 Civ 602.,78 Civ 602.
• Citation: 506 F. Supp. 1003
• Parties: WIXT TELEVISION, INC., Plaintiff, v. MEREDITH CORPORATION and Newhouse Broadcasting Corporation, Defendants.
• Court: U.S. District Court — Northern District of New York

506 F. Supp. 1003

WIXT TELEVISION, INC., Plaintiff, v. MEREDITH CORPORATION and Newhouse Broadcasting Corporation, Defendants.

No. 78 Civ 602.

United States District Court, N. D. New York.

December 12, 1980.

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Finley, Kumble, Wagner, Heine & Underberg, New York City, for plaintiff WIXT Television, Inc.; Jeffrey A. Fillman, New York City, of counsel.

MacKenzie, Smith, Lewis, Michell & Hughes, Syracuse, N. Y., McDermott, Will & Emery, Chicago, Ill., for defendant Meredith Corp.; Raymond W. Hackbarth, Syracuse, N. Y., Samuel Weisbard, Chicago, Ill., of counsel.

Bond, Schoeneck & King, Syracuse, N. Y., for defendant Newhouse Broadcasting Corp.; Charles T. Beeching, Syracuse, N. Y., of counsel.

MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

I.

On November 20, 1978, plaintiff WIXT Television, Inc., a New York corporation, filed a private antitrust action in the Northern District of New York against two formidable communications conglomerates, Meredith Corporation and Newhouse Broadcasting Corporation. Plaintiff WIXT operates the American Broadcasting Company (ABC) television affiliate in Syracuse, New York. Defendant Meredith operates television station WTVH in Syracuse, the Columbia Broadcasting Company affiliate, as well as television and radio stations in other communities in the United States.¹ Defendant Newhouse Broadcasting Corporation operates WSYR television and radio stations in Syracuse, which are the National Broadcasting Corporation affiliates, and operates other television and radio stations throughout the United States.² Moreover, through its subsidiary, the Herald Company, Newhouse owns and publishes the only local daily morning, afternoon, and Sunday newspapers in Syracuse.

In plaintiff's original complaint, which plaintiff concedes was "hurriedly prepared"³ and "not as clear as it might have been,"⁴ plaintiff contends that defendants conspired to foreclose plaintiff from competing for commercial television advertising in Syracuse, New York, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and more specifically the Noerr-Pennington⁵ doctrine. However, it appears that Meredith's subsequent motions⁶ to dismiss plaintiff's complaint or in the alternative to strike portions of the complaint, and a motion by Newhouse for summary judgment, inspired plaintiff to expand its claims. On March 2, 1979, plaintiff moved to amend its complaint in order to "clearly allege"⁷ that Newhouse has engaged in reciprocal advertising practices in concert with its newspaper affiliate, the Herald Company, which, in its proposed amended complaint, plaintiff seeks to add as a defendant co-conspirator.⁸ In addition, plaintiff's proposed amended complaint alleges that Newhouse and Meredith conspired to deprive plaintiff of its affiliation with ABC. After hearing oral argument on all of the above motions on April 9, 1979, the Court reserved its decisions.

In the meantime, plaintiff proceeded with discovery of Newhouse by deposing the vice-president and general manager of WSYR's television and radio stations, David Shurtleff, on March 7, 1979. Plaintiff served Newhouse with a request for the production of documents and things which was complied with by Newhouse at the deposition of Mr. Shurtleff. For its part, Newhouse served plaintiff with interrogatories and a request for admissions. Plaintiff later responded to Newhouse's discovery demands, but in a manner that was objected to by Newhouse.⁹ However, beyond this, very little discovery was attempted by WIXT or Newhouse.¹⁰

The reasons for the protracted discovery is partly attributable to scheduling conflicts and "communication problems" between the parties.¹¹ The delay was also attributable, at least from plaintiff's point of view, because of its request pursuant to Rule 56(f) of the Fed.R.Civ.P., to stay the Court's decision on Newhouse's summary judgment motion until plaintiff had an opportunity to conduct further discovery, which plaintiff believed would be essential to enable it to adequately oppose Newhouse's motion. In an effort to resolve these problems, plaintiff requested a pre-trial conference. The conference was held on November 29, 1979, and to the Court's surprise, plaintiff withdrew its Rule 56(f) request.¹² Furthermore, plaintiff informed the Court that it would not object to a resolution of the Newhouse summary judgment motion on the basis of the record as it stood at that time. The Court construed plaintiff's statements as a waiver of its right to further discovery.

In any event, on March 4, 1980, the Court contacted attorneys for Newhouse and WIXT and inquired whether they desired the opportunity to conduct further discovery before the Court ruled on the pending motions. Both parties declined the Court's invitation. With this procedural background in mind, the Court will first consider plaintiff's motion to amend its complaint.

II.

Plaintiff moves to amend its complaint for purposes of clarifying the claims that it made in its original complaint, and to add the Newhouse-owned Herald Company as a defendant co-conspirator. While Meredith does not oppose the amendment of plaintiff's complaint, Newhouse maintains that, even after considering the changes in plaintiff's proposed amended complaint, plaintiff has failed to state a claim upon which relief can be granted, and has failed to demonstrate that there is a sufficient factual basis to support its claims. Newhouse nevertheless concedes that plaintiff's proposed amended complaint differs from the original in its drafting style only, because it "alleges no additional facts which were not before the Court in connection with Newhouse's motion for summary judgment." Newhouse Memorandum in Opposition to Plaintiff's Motion To Amend its Complaint, at p. 2.

As a general proposition, leave to amend a complaint "shall be freely given when justice so requires," Rule 15 Fed.R. Civ.P., "and if the plaintiff has at least a colorable grounds for relief, justice does so require unless the plaintiff is guilty of undue delay or bad faith or unless permission to amend would unduly prejudice the opposing party." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); S. S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979). At the same time, "(a) trial court does not abuse its discretion in denying leave to amend a complaint which even as amended would fail to state a cause of action." Id.

To the extent that plaintiff's proposed amended complaint merely elaborates on its original claims, the Court believes that the interest of justice will be served by granting plaintiff's motion to amend. Since defendant Newhouse admits that it is already familiar with the assertions made in the proposed complaint, it will not be surprised or prejudiced by the additional allegations that plaintiff has proposed. Furthermore, this result is in the interest of completeness and judicial economy. Although Newhouse argues that plaintiff's proposed amended complaint is unsupported by the facts and fails to state a claim upon which relief can be granted, these matters can best be considered in the context of the motions to dismiss and for summary judgment. Accordingly, plaintiff's motion to amend its complaint is granted, and the amended complaint will serve as the basis for the analysis of defendants' motions. The Court will next examine defendant Newhouse's motion for summary judgment.

III.

Plaintiff's complaint alleges three claims under Section 1 of the Sherman Act: first, that Newhouse and Herald have operated a reciprocal advertising arrangement; second, that Newhouse and Meredith have conspired to interfere with WIXT's ABC affiliation by boycotting plaintiff; and third, that Newhouse and Meredith have conspired to deny WIXT access to various government agencies. Newhouse has moved for summary judgment with respect to each of plaintiff's claims on the grounds that WIXT has not marshaled sufficient facts to show that triable issues of fact exist.

A. Summary Judgment

Summary judgment attains procedural significance by permitting the court to pierce sham claims and resolve actions where the facts are undisputed, and the moving party is entitled to judgment as a matter of law. Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970); American Mfrs. M. I. Co. v. American Broadcasting-Pars. Th., 388 F.2d 272, 278 (2d Cir. 1967). On a motion for summary judgment, the court is not to try issues of fact, rather, it is only to determine whether triable issues exist. Id. at 279. In making this determination, the court must "resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). This is not to say that the party opposing summary judgment is free of all procedural obstacles. On the contrary, the opposing party "must do more than whet the curiosity of the court" with its claims. "He must support vague accusation and surmise with concrete particulars" and show that there is a genuine issue as to any material fact. Applegate v. Top Associates, Inc., supra, 425 F.2d at 96. To some extent, however, this procedural devise relies less upon scientific precision than upon the "informed and properly reasoned judgment" of the court. American Mfrs. M. I. Co. v. American Broadcasting-Para. Th., supra, 388 F.2d at 279.

The primary burden of proof in a summary judgment motion is on the moving party, Adickes v. S. H. Kress & Co., 398 U.S. 144, 157-61, 90 S.Ct. 1598, 1608-10, 26 L.Ed.2d 142 (1970). Once this burden has been met, the nonmoving party can avoid an adverse judgment only by bringing forth evidentiary support for its claims. Fed.R. Civ.P. 56(e); First National Bank v. Cities Service Co., 391 U.S. 253, 299, 88...