Opinion
DOCKET NO. 93-CV-0302E(F)
August 10, 2000
Edward C. Cosgrove, Esq., Buffalo, NY, attorneys for the Plaintiff.
Quality, Penn Sunrise — Charles C. Swanekamp, Esq., c/o Jaeckle Fleischmann Mugel, Buffalo, NY, and James J. Capra, Jr., Esq., Kenneth N. Hart, Esq., Gino D. Vissicchio, c/o Orrick, Herrington Sutcliffe, New York, NY, Paige — Kenneth W. Africano, Esq., c/o Damon Morey, Buffalo, NY, attorneys for the Defendant.
EDITORS' NOTE: THIS OPINION HAS BEEN DESIGNATED "NOT FOR PUBLICATION".]
MEMORANDUM and ORDER
On August 21, 1996 this Court granted summary judgment in favor of defendants Quality Markets, Inc., the Penn Traffic Company, Properties, Inc. ("the Quality defendants" or "Quality") and James V. Paige, Jr., thereby dismissing plaintiff's federal antitrust claims and declining to exercise supplemental jurisdiction over the remaining state law claims and counterclaims. See 1996 WL 483957 (W.D.N.Y). On appeal, the Second Circuit Court of Appeals affirmed the dismissal of all but the attempted monopolization claim. See 142 F.3d 90 (2d Cir. 1998). A jury trial was had from August 16, 1999 through September 8, 1999 on Tops Markets, Inc.'s ("Tops") attempted monopolization claim against all defendants and Paige's state law counterclaim for injurious falsehood. After deliberating for approximately three hours, the jury returned a verdict against Tops and a verdict in favor of Paige. Presently before this Court is Tops' motion for judgment as a matter of law or for a new trial. Because Tops has failed to carry its burden relative to either form of post-verdict relief, its motion will be denied and the jury's verdict will stand.
Under Rule 50 of the Federal Rules of Civil Procedure ("FRCvP"), a motion for judgment as a matter of law "may be made at any time before submission of the case to the jury." In the event that the court does not grant such motion prior to submission of the matter to the jury, the moving party may "renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial . . . under Rule 59." As a threshold matter, the Quality defendants have argued that, because Tops failed to move for a directed verdict at the close of evidence, it is necessarily precluded from renewing such after the return of the jury verdict. While it rests on a correct statement of the law, the defendants' argument fails to account for the undersigned's having invited the plaintiff's motion minutes after the verdict was read. See Trial Transcript ("Tr.Trans.") at 3077. Thus and because — given the within disposition of Tops' motion — no prejudice inures to the detriment of the defendants, Tops' motion has been considered on its merits.
A post-verdict motion for judgment as a matter of law is not to be granted unless "(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable fair minded [sic] [persons] could not arrive at a verdict against [it]." Cruz v. Local Union 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154 (2d Cir. 1994). In making its determination, this Court is to consider "whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [people] could have reached." Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970). The question, then, is not whether the undersigned — or anybody else — would have decided the case differently based on the evidence adduced at trial, but whether this jury's verdict was reasonable based on its permissible construal of such evidence.
Because the facts of this case have been amply set forth in decisions of this Court and the Second Circuit Court of Appeals as well as at trial, familiarity with them is assumed. Suffice to say that Tops has alleged that the Quality defendants and Paige attempted to monopolize the grocery store market in Jamestown, N.Y. in and after 1992. Part of the conduct to which Tops has repeatedly objected was the entering into by Paige and Quality of a "back-up" contract for the sale of two parcels of land on Washington Street after Paige and Tops had entered into negotiations for those same parcels. The terms of the back-up contract called for the termination of the previously existing agreement between Paige and Tops.
The back-up contract provided in pertinent part that "THE SELLER HAS PREVIOUSLY ENTERED INTO A CONTRACT TO SELL THE PREMISES TO TOPS MARKETS, INC. (THE `PRIOR CONTRACT'). THIS CONTRACT AND ALL OF THE SELLER'S OBLIGATIONS UNDER IT ARE SPECIFICALLY SUBJECT TO AND CONTINGENT UPON THE TERMINATION, ON TERMS SATISFACTORY TO THE SELLER, OF THE PRIOR CONTRACT." Pltf Exh 36.
Top's first argument in support of its FRCvP 50 motion is that the evidence adduced in support of the attempted monopolization claim against Quality was so overwhelming that no reasonable juror could have found in favor of defendants. To prevail on an attempted monopolization claim under the Sherman Act, a plaintiff must prove "(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power." Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 466 (1993); see also 15 U.S.C. § 2. to Tops, the requisite specific intent and anticompetitive conduct was "irrefutably" and "unequivocally" established at trial by the introduction into evidence of the back-up contract. Tops reasons that, because the real property at issue was inaccessible from the street and, therefore, "virtually undevelopable," Quality's intent to monopolize may be inferred from its purchase. Further evidence which, according to Tops, "demonstrates that the only reasonable conclusion in this case can be that the Quality defendants attempted to monopolize the Jamestown supermarket business" came in the form of testimony by Quality executives to the effect that Quality undertook to purchase the property from Paige for the express purpose of keeping Tops from putting a store around the corner — i.e., only "a stone's throw" — from its biggest Jamestown store. See, e.g., Tr.Trans. at 2500. Finally, Tops points to the fact that, during the relevant period, Quality controlled upwards of 70% of the market.
For its part, Quality does not dispute at the post-trial phase that it sought to keep Tops from purchasing the property on Washington Street. As Quality Executive Vice President Randall Sweeney makes clear in a statement made on September 13, 1993 and introduced at trial, Quality sought to keep Tops off Washington Street but not out of Jamestown — "[w]hile we believe in the free market system and welcome any competitor to the area, we just don't think we have to help them set up shop." Pltf Exh 87. Sweeney's trial testimony was consistent on this score. See Tr.Trans. at 97 ("There never was any discussion about trying to keep competitors out."). The jury also heard Quality's John Dixon deny any intent or ability by Quality to keep Tops out of the area. Tr.Trans. at 2497.
Notwithstanding Quality's dominant market position, Wegmans Supermarkets successfully entered the Jamestown market in 1995. Relatedly, testimony was presented to the effect that there were many sites besides the Washington Street tracts which Tops could have bought and developed. Accordingly, Quality argued to the jury that the blocking of Tops' purchase of the Washington Street parcels neither establishes intent nor represented anticompetitive conduct and, therefore, cannot serve as the basis for an attempted monopolization claim. In and by its motion, Tops rejects such argument as "sheer speculation and surmise." "If we are going to speculate that Tops could have taken steps to open at another site, we should equally be able to speculate that the Quality defendants could have taken steps to block Tops' entrance at alternate sites as well." Pltf Mem. at 19. But Tops' retort misses the point. It was incumbent on Tops to show that Quality had sought to use its heavyweight status to keep Tops out of the Jamestown area. By showing that there were plenty of alternatives to the Washington Street site available, Quality — in the jury's eyes last fall and in the undersigned's today — effectively undermined that argument.
The jury heard other testimony which bolstered Quality's position and weakened Tops'. A former President and CEO of Tops, Lawrence Castellani, acknowledged via deposition testimony that "there were a number of sites available in Jamestown" during the relevant period (Tr.Trans. at 213) and that the facts did not support a claim that Tops "was prevented, by the defendants, from acquiring supermarket sites, other than on Washington Street." Id. at 164. Significantly, the jury heard Castellani's testimony that the site ultimately chosen by Wegmans for its maiden enterprise in the Jamestown area had been available to Tops but that Tops had "elected not to pursue that area." Id. at 197. Among the four other witnesses from whom the jury heard testimony about alternative sites was G. Richard Kelley, a senior real estate counselor testifying as an expert witness for the defense, who testified that there were at least "half a dozen sites" in the Jamestown area on which a supermarket could be built. Id. at 2644. The jury also witnessed the failure of Tops' counsel to cross-examine such expert on his assertion. Id. at 2652.
After the close of evidence, the undersigned instructed the jury on the elements of an attempted monopolization claim. With regard to specific intent, the jurors were told that
"Tops must have proven by a preponderance of the evidence that the Quality defendants acted with the purpose or conscious object of maintaining or acquiring the power to control prices or exclude competition in the supermarket business in the Jamestown area." Tr.Trans. at 3042.
In response to this instruction and in light of the three-plus weeks of evidence presented to them, the jury answered in the negative the following question on the Special Verdict Sheet:
"Has the plaintiff Tops proven by the preponderance of the evidence that the Quality defendants, in and by their purchase of the two Washington St. lots from Mr. Paige, had a specific intention of achieving a monopoly of the supermarket business within the Jamestown marketing area?" Ct. Exh 1.
While Tops concludes from this turn of events that the jury acted unreasonably, the undersigned concludes nothing of the kind.
Tops maintains that Quality's keeping it from buying the Washington Street parcels is tantamount to attempted monopoly because Tops was harmed thereby. However, such harm in and of itself may simply be chalked up to the vagaries of the marketplace. "Vigorous competitors intend to harm rivals, to all the business if they can. To penalize this intent is to penalize competition." Ball Memorial Hosp., Inc. v. Mutual Hosp. Ins., 784 F.2d 1325, 1339 (7th Cir. 1986). Similarly, "[t]he purpose of the [Sherman] Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market." Spectrum Sports, Inc., at 458. Even severely competitive conduct is acceptable so long as such does not shade into that which "unfairly tends to destroy competition itself." Ibid.
Against this factual and legal backdrop, this Court finds that it was certainly reasonable that the jury should have found Quality to have had no specific intent to monopolize the Jamestown market. When considering this very question after this Court's original dismissal of the antitrust claims, the Second Circuit Court of Appeals opined that the Quality executives' words and actions might well give rise to a finding of specific intent. See Tops Markets, Inc., at 101-102. That conclusion impelled the Court of Appeals to remand the issue to a factfinder. See ibid. The impaneled factfinders, however, considered all the evidence and concluded that, while Quality certainly intended to try to keep Tops off Washington Street, it had no specific intent or plan to keep Tops out of the Jamestown area. The Jury's conclusion was reasonable given the totality of the evidence before it.
Having concluded that the jury's finding relative to specific intent was amply supported by the evidence there is no need to consider Tops' arguments for judgment as a matter of law on the additional elements — i.e., anticompetitive conduct and dangerous probability of achieving a monopoly — of the attempted monopolization claim against Quality.
Tops argues next that it is entitled to judgment as a matter of law on Paige's injurious falsehood counterclaim.
A person who makes a statement about another person's land which is reasonably understood to cast doubt upon the ownership of the lands by those who see or hear the statement, is liable for the pecuniary loss which results directly and naturally from statement, provided first, that the statement is false, and second, that it was made maliciously. New York Pattern Jury Instruction, 3:55
The elements of such claim are "falsity, malice and special damage." NYPJI, 3:55 Comment (citing Collision Plan Unlimited, Inc. v. Bankers Trust Co., 63 N.Y.2d 827 (1984)). As is known to those familiar with this case, Paige alleged that Tops' director of real estate, Nicholas Schmitt, filed an affidavit January 28, 1993 with the Chautauqua County Clerk's Office which falsely stated that Tops had a contract to purchase the property. Paige also claimed that, as a result of Schmitt's act, he was unable to obtain the financing he desired to repurchase the property from Quality.
The "back-up" contract provided that Paige would be entitled to repurchase the parcels at his option for $765,000.
In support of its position, Tops adduced evidence aimed at showing that there was an enforceable written contract between Tops and Paige and that, therefore, Schmitt could not have imported any falsehood as against Paige. It is undisputed and was made clear at trial that the land-sale agreement Tops had forwarded to Paige on December 19, 1991 required both parties to sign it by December 24, 1991 in order for it to have any legal effect. Tops had signed the agreement prior to mailing it. On March 13, 1992 Paige forwarded to Tops a countersigned agreement that had been substantially amended. Accompanying the document was a letter from Paige's then-attorney, Gregory Peterson, Esq., to Tops counsel indicating that, in his opinion, the document needed to be re-executed by Tops because "the original contract has been substantially changed." Tr.Trans. at 1860. The jury then heard Peterson tell Paige's trial attorney that the additional changes rendered the document Paige had returned a counteroffer rather than a binding contract and that Tops never re-executed the agreement. See id. at 1858-1861. In an attempt to undermine Peterson's witness-stand concession, Tops introduced an October 2, 1992 letter from Paige to Tops in which Paige referred to their "contract." See Pltf Exh 45. In light of the jury's having heard and seen that the contract was to be signed by both parties prior to December 24, 1991 or become a legal nullity, that such requirement was never fulfilled and that Tops had been put on notice of the contract's probable infirmity, the jury had every right to conclude that there had been no enforceable contract between Paige and Tops.
Tops describes at some length in its motion papers its position that the law does not require a written acceptance or even a written contract for the sale of land. See Pltf Mem. at 24-25. Not only does this Court regard the cases on which Tops relies as inapposite, but Tops identifies nothing in the transcript to suggest that these points were ever presented to the jury. It seems clear, then, that the jury cannot at this point be faulted for having failed to consider them. Similarly, Tops points to no portion of the transcript as reflective of its introduction at trial of its part-performance argument. Regardless, the New York Court of Appeals has made clear — on a question certified to it by the Second Circuit Court of Appeals — that only the party who partially performed may avail himself of this equitable remedy. See Messner Vetere Berger McNamee Schmetterer Euro RSCG, Inc. v. Aegis Group PLC, 93 N.Y.2d 229, 237 (1999).
This is so even though Paige had initially behaved as though he thought the contract was valid. Tops' argument that Paige somehow waived the December 24 signature requirement misses the mark; Paige mailed back a substantially different contract which Tops never re-executed or accepted in any other way. For this reason alone, it cannot be said that the parties were ever bound by a legally enforceable agreement.
Having concluded that Schmitt's affidavit was false, the question for the jury became whether such attestation was maliciously made. As I instructed the jury, a false statement is maliciously made if the maker knows it to be false. See New York Pattern Jury Instruction Cumulative Supplement 3:55 (1999); Tr.Trans. at 3056. At the same time, a false statement is maliciously made even though the maker did not know it was false if (1) such is made with the intent to interfere with another person's interests or with a deliberate desire to do another person harm, or (2) such is made recklessly, without regard to the consequences, and under circumstances from which the maker, as a reasonably prudent person, should have anticipated that injury would follow. Ibid.
Tops argued to the jury — and does so again to the undersigned — that the fact that Tops believed the contract was enforceable vitiates any claimed malice. Moreover, the argument continued and continues, the sole purpose behind Schmitt's affidavit "was to put the public on notice of Tops' interest in the property held by Paige." Pltf Mem. at 29. According to Tops, because both Tops and Paige believed that there was an enforceable agreement, the presumption of malice that may be inferred from the making of a false statement is overcome. Once again, Tops points to no evidence of its "belief" apart from Paige's October 2, 1992 letter in which he refers to the "contract." On the other side of the equation, the cross-examination of Schmitt suggests that he knew or should have known that his affidavit was based on a false premise and that he intended to harm — or reasonably should have known that his affidavit would harm — Paige. The jury's attention was directed to what Paige characterizes in his motion papers as evidence of the "deficiencies in the purported agreement" contained in Tops' internal files. Paige Mem. at 13. Such includes Peterson's March 13, 1992 letter to Tops' counsel advising Tops to re-execute the agreement (Dft Exh 177; Tr.Trans. at 1939) and a January 7, 1993 letter from another Paige attorney, David Kowalski, Esq., to Tops indicating that, "[t]he contract, if there ever was one, has expired" (Plt Exh 57; Tr.Trans. at 1941). The jury also heard Paige's trial attorney's cross-examination of Schmitt which revealed that, either Schmitt had failed adequately to investigate the validity of the agreement before he filed his affidavit — even though he knew that Paige and his attorney adamantly denied such (see Tr.Trans. at 1944) — or he was lying about his level of familiarity with such question.
In light of the evidence adduced at trial and the instructions on the law, the jury answered in the affirmative the following question on the Special Verdict Sheet: "Has Mr. Paige proven by the preponderance of the evidence that Nicholas Schmitt, acting on behalf of the plaintiff Tops, knowingly (or in disregard of what was the truth) made a false statement in his affidavit which he signed and swore to January 28, 1993 and which was then filed in and with the Office of the Chautauqua County Clerk?" Given the depiction of the proceedings provided above, this Court finds the jury's determination to have been reasonable and not against the weight of the evidence. Thus, the jury's verdict as to Paige's counterclaim will stand.
Parenthetically, Tops argues that Paige cannot recover under any circumstances because, "as a matter of law," he has not and could not suffer any damages as a result of Schmitt's conduct because the Jamestown Urban Renewal Agency ultimately paid Quality $300,000 — rather than the $765,000 for which Paige was to have bought them back from Quality — for the subject parcels as part of an eminent domain proceeding. See Pltf Mem. at 30-34; Pltf Reply Mem. at 12-16. This argument must be rejected out of hand because, inter alia and as Paige makes clear in his opposition papers, no evidence of any such purchase price or proceeding was introduced at trial. This is, of course, understandable in that, because the trial was bifurcated, the jury heard evidence only of liability and no evidence of any damages in any context. Responding to Paige's present opposition to the matter being considered at this point, Tops reasons that, "[i]n moving to have the counterclaim dismissed as a matter of law, Tops is entitled to make its argument at this time. Pltf Reply Mem. at 12. Because such argument is being raised for the first time, Tops is not so entitled. Perhaps anticipating this Court's response, Tops adds that the FRCvP 50 motion should be treated as a motion in limine relative to the damages portion of the trial. The undersigned declines such invitation and will, for the reasons stated, deny Tops' FRCvP 50 motion in its entirety.
Tops has moved in the alternative for a new trial pursuant to FRCvP 59. A new trial should not be granted "unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Amato v. City of Saratoga Springs, 170 F.3d 311, 314 (2d Cir. 1999). The first asserted basis for a new trial is that the undersigned improperly excluded the testimony of Dr. Ronald W. Cotterill, Ph.D. According to Tops, "[t]he testimony of Dr. Cotterill would have given the jury a thorough basis upon which to assess the Quality defendants' power in the relevant market, and to understand from an economic standpoint that the Quality defendants were dangerously close to achieving a monopoly as defined by the Supreme Court in violation of Section 2 of the Sherman Antitrust Act." Pltf Mem. at 38. After having reviewed Cotterill's proposed testimony, the undersigned ruled from the bench that such would be of no help to the jury. See Tr.Trans. at 373. Subsequently and after listening to extensive proposed testimony during Tops' offer of proof, the conviction that such was the case remained — and remains. See id. at 2327.
Tops points to a number of cases to support its contention that it was "entitled" to utilize expert testimony. None of them is availing. For example, Tops cites F.B. Leopold Co., Inc. v. Roberts Filter Mfr. Co., 882 F. Supp. 433 (W.D. Pa. 1995), aff'd, 119 F.3d 15 (3d Cir. 1996), for the "specific holding" that "a plaintiff, though not required to do so, is entitled to use the testimony of an economic expert to support an attempted monopolization claim against a defendant." Pltf Mem. at 36. In point of fact, while it may be inferred from the language and facts of that case that expert testimony might have been helpful in reaching an understanding of notions such as the relevant markets and market power there in question, Leopold merely recognized that, while expert testimony is not required, something more than an affiant's conclusory allegations about market power and the like is required to overcome a motion for summary judgment. See Leopold, at 452 ("While it appears as though many parties in antitrust cases utilize expert testimony in order to establish relevant market and market power, we have found no authority which indicates that expert testimony is required, and we do not venture to so hold."). While there certainly are antitrust cases in which experts have been allowed to testify where, as here, the contours of the relevant market were not disputed and the question of damages had yet to surface, there simply is no sense in which Dr. Cotterill's testimony would have been helpful to the jury in its determinations. Finally, a review of Cotterill's proposed testimony, as previewed during Tops' offer of proof, confirms that such would have been cumulative, confusing and/or inappropriate. See Tr.Trans. at 2396-2420.
That Tops is unable to locate any federal precedent holding that a plaintiff in an attempted monopolization case may be prevented from introducing expert testimony is not remarkable. Rule 702 of the Federal Rules of Evidence provides that expert testimony is to be allowed only if the witness's knowledge "will assist the trier of fact to understand or to determine a fact in issue." It is the job of the trial judge to make that determination and, based on a careful consideration of the issues in this case and the proposed testimony of Dr. Cotterill, it was determined that no such assistance would result from his testimony. The undersigned's determination was that such proffered expertise was unneeded, would not have helped the jury in its determinations and well may have confused the factfinders.
Tops also cites as error the exclusion from evidence of two studies which purportedly "would have been supportive of Tops' position." Pltf. Mem. at 39. Assuming for the sake of argument that such is the case, because Tops offered — and offers — no foundation for their admission, the undersigned declines to revisit the decision to exclude them.
Tops' next argument in favor of a new trial is that it was error for this Court to refuse to allow an expert witness to propound a theory of damages based on an unsupported and demonstrably false premise. Such theory was based on the assumption that Wegmans would not have entered the Jamestown market had Tops opened a store there in 1994. On the one hand and as Quality points out in its opposition papers, the assumption flies in the face of the evidence adduced at trial. See, e.g., Tr.Trans. at 2261-2262 (Tops executive Fitzgerald acknowledges that "Tops was interested in proceeding with its store, notwithstanding the high probability that Wegmans would come in."). More importantly, however, any error associated with the excluded testimony and the undersigned's dubbing its premise "false" in front of the jury is inconsequential inasmuch as the jury returned a verdict of no liability against the defendants. The notion that the jury would have come back with a different verdict on liability based on a heretofore unexpressed theory of damages cannot be the basis for a new trial.
In charging the jury, the undersigned advised that "[t]his Court has ruled that any realistic power to monopolize the supermarket business in Jamestown was non-existent after it became [demonstrably] apparent that Wegmans was entering into the Jamestown supermarket competition." Tr.Trans. at 3040. An error in a particular jury instruction may be the basis for a new trial only if, when "taken as a whole, the jury instructions gave a misleading impression or inadequate understanding of the law." Luciano v. Olsten Corp., 110 F.3d 210, 218 (2d Cir. 1997). According to Tops, such instruction was erroneous because it represented a factual determination that was the jury's to make. While it is possible that, read alone, the passage might be construed as foreclosing any possibility of monopolization on defendants' part, taken in the context in which it was offered to the jury, it does no such thing. Such context follows:
"Whether the Quality defendants actually acquired or exercised monopoly power is not relevant to this case, in fact, this Court has already determined that the defendants did not so acquire or exercise such power. This Court has ruled that any realistic power to monopolize the supermarket business in Jamestown was non-existent after it became [demonstrably] apparent that Wegmans was entering into the Jamestown supermarket competition. The relevant question before you is whether the Quality defendants attempted, tried to acquire monopoly power, because to do so is a violation of the law." Tr.Trans., at 3040-3041.
Tops maintains that the above reference to a completed — in addition to attempted — monopolization precluded the jury's adequate understanding of the elements of an attempted monopolization claim. Such conclusion does not follow from the appropriately contextualized statement which, of course, is what the jury heard. Moreover and significantly, even if the jury did misunderstand the concept of varying probabilities of monopolization — an outcome all the more unlikely when considered against the backdrop of the "dangerous probability" instructions at pages 3049 to 3051 of the transcript —, the jury nevertheless found Tops to have failed to prove that the defendants had the intent to monopolize the Jamestown market. Such finding is, of itself, adequate to sustain the verdict.
Another allegedly erroneous jury instruction involves the undersigned's characterization of the alleged agreement between Paige and Tops as "purported." According to Tops, "[t]he Court's use of the word `purported' slants toward the conclusion that there was no contract, when, in fact, as the Court otherwise instructed, it was up to the jury to make that decision." Pltf Mem. at 43. proposes that the undersigned should have referred to the document "Tops believed to be a contract." On the one hand, the distinction between my adjective and Tops' proposed alternative is so slight as to be legally insignificant. Moreover, the use of the adjective "purported" to describe a contract about whose validity there is some question certainly is not unheard of. See, e.g., N.L.R.B. v. Katz's Delicatessen of Houston St., 80 F.3d 755, 762 (2d Cir. 1996). Most important for present purposes, however and again, is the reading of the objected to word in the context in which the jury heard it. Even a glance at such makes clear that the use of the allegedly offensive adjective did nothing to "slant" toward any particular conclusion — to wit,
"[t]he January 28, 1993 [affidavit] of Tops's [sic] Nicholas Schmitt was filed with the Clerk of Chautauqua County and stated that Tops had entered into a contract with Mr. Paige for the purchase of Mr. Paige's property on Washington Street, and had attached thereto a purported contract. In this action Mr. Paige contends that there was no binding[,] enforceable contract between himself and Tops, and therefore that the affidavit filed by Tops was false. Tops, on the other hand, contends that there was an enforceable contract between it and Mr. Paige, and that the statement contained in the affidavit was not false." Tr.Trans. at 3053-3054.
I then proceeded to instruct the jury on the fundamentals of contract law and contract interpretation. In this regard, Tops adjudges to be erroneous my omission of instructions on the equitable doctrine of part performance as well as of the possibility that Paige had waived a provision of the contract. For the reasons set forth above, neither aspect of contract law was relevant to the jury's resolution of the question before it.
As regards the Special Verdict Sheet, Tops argues that the Court's errors are three. First, the use of "very high" instead of "dangerous" to describe the actionable probability of achieving a monopoly not only created a more rigorous standard for the plaintiff but was "flatly inconsistent" with the jury instructions on such element. Second, there should have been a question on the anticompetitive conduct element of an attempted monopolization claim. Third, there should have been a question with regard to the malice element of injurious falsehood.
Tops' contentions are rejected first because they were not timely raised. See FRCvP 49(a); Metromedia v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992). Second, the two attempted-monopolization related objections fail for their superfluity — i.e., neither element needed to be reached because no specific intent was found. However, the objections fail on their merits as well. The jury was fully instructed on what "dangerous probability" means. See Tr.Trans. at 3049-3050 ("To prove this element, Tops does not have to prove that success was [nearly] certain[;] what Tops must prove is that the chances of success were substantial and real. . . ."). The Court of Appeals characterized the question as whether one is "close to" achieving monopoly power. See Tops Markets, Inc., at 100. The United States Supreme Court has prescribed that "the conduct of a single firm . . . `is unlawful only when it threatens actual monopolization.'" Spectrum Sports, at 456 (quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767 (1984)). The Special Verdict Sheet was phrased in terms a "very high probability that the Quality defendants could thereby have succeeded in achieving a monopoly. . . ." In light of the jury instructions and the jurisprudential etymology of "dangerous probability" charted above, there can be no question that the inquiry put to the jury was the correct one.
An examination of the Special Verdict Sheet (Ct. Exh 1) reveals that the jury did not answer and was not, given its determination on the specific intent question, required to answer the likelihood-of-success question.
According to Tops, the injurious falsehood question on the verdict sheet was deficient because, "[i]n short, the jury was asked if defendant Paige proved, by a preponderance of the evidence, that the statement within Nicholas Schmitt's affidavit was false." Pltf Mem. at 48. In point of fact, the jury was asked, "Has Mr. Paige proven by the preponderance of the evidence that Nicholas Schmitt, acting on behalf of the plaintiff Tops, knowingly (or in disregard of what was the truth) made a false statement in his affidavit which he signed and swore to January 28, 1993 and which was then filed in and with the Office of the Chautauqua County Clerk?" Inasmuch as the jury had previously been instructed that a false statement is maliciously made if it was made with the knowledge that it was false or if it was made "recklessly without regard to the consequences" (Tr.Trans. at 3056), Tops' interpretation of the question is simply inaccurate.
Tops also objects to the fact that the jury was not asked to find whether Paige had suffered any damages from Schmitt's alleged wrongdoing. As such objection has by this point received considerable treatment, it will not be addressed further.
Tops' final purported basis for a new trial is that this Court erroneously kept the jury from considering the attempted monopolization claim against Paige. On the appeal from this Court's grant of summary judgment against Tops, Paige argued for the first time that, "because he was never personally engaged in the supermarket retail business, he had no motive for influencing that industry within the relevant market." Tops Markets, Inc. at 102. In light of Paige's having failed to raise such point previously, the Court of Appeals decided that, "[w]hile this argument may or may not ultimately be persuasive, we are unable to consider it now on appeal because it was not raised below." Ibid. Upon remand, Paige filed a second motion for summary judgment by which he renewed his so-called innocent-real-estate-developer argument. By Order dated August 6, 1999, this Court denied Paige's motion because Tops had "adduced sufficient evidence to create a genuine issue of material fact as to, inter alia, the extent to which Paige so benefitted from and was so professionally intertwined with the Jamestown grocery industry that he reasonably could be said to be dangerously close to achieving a monopoly therein." Motivating that Order was this Court's concern that Tops be afforded every opportunity to prove its case relative to Paige's alleged "attempted monopolization." Thus, the matter proceeded to trial.
The Court went on to note that, "[b]ecause the district court was not given the opportunity to consider the issue of Paige's intent, summary judgment in his favor may not now be affirmed on this ground."
At the close of evidence, the undersigned rallied the parties and their attorneys for a charging conference. During a colloquy among counsel and the undersigned, it became clear that Tops' position was that, because the Second Circuit Court of Appeals had already foreclosed the innocent-real-estate-developer angle, it was sufficient, in order to succeed on an attempted monopolization claim, for Tops to show only that Paige knew that Quality had a specific intent to achieve a monopoly and enjoyed a dangerous probability of doing so. See Tr.Trans. at 2792-2794. Having fully considered the breadth of Tops' evidence and its theories of recovery, the undersigned held that, "[o]n the basis of what [Tops' attorney] has now set forth on the record, I grant your motion to dismiss Tops' action against Paige." Id. at 2794.
In its motion papers, Tops relies heavily on this excerpt from the appellate decision: "a reasonable factfinder could believe that, by their words and actions, defendants here demonstrated a specific intent to create a monopoly with a dangerous probability of success." Tops Markets, Inc., at 93. While such language is unequivocal, it does not, when read against the rest of the decision, lead inevitably to the result Tops urges on this Court. The Court of Appeals, assuming the existence of a valid contract between Paige and Tops, determined that a question of material fact existed as to whether the defendants, including Paige, had engaged in anticompetitive or predatory conduct as such behavior is understood in Sherman Act litigation. See id. at 100. Proceeding to the second prong of the attempted monopolization analysis, the Court of Appeals opined that "[a]ttempted monopolization requires some degree of market power" and that "[i]n considering the likelihood of achieving monopoly power, we employ the same concept of market power as that used in a completed monopolization claim, i.e., one which considers the defendant's relevant market share in light of other market characteristics. . . ." Ibid. Thus, considering the evidence before it that, during the relevant period, Quality possessed a market share of over 70%, the Court of Appeals concluded that, "[w]hereas Tops' proof of market share alone — even when countered with evidence of easy market access — failed to show as a matter of law that Quality actually possessed market power, it could nevertheless support a finding that Quality had a dangerous probability of achieving market power." Id. at 101. No mention was made of any dangerous probability of Paige's achieving market power or, ultimately, a monopoly. As regards Paige's intent and as has been made clear, the Court of Appeals declined to consider such defendant's argument, raised for the first time on appeal, that, as a real estate developer with no involvement in the grocery business, "he had no motive for influencing that industry within the relevant market." Id. at 102.
Paige has maintained, since the time of Tops' appeal to the Court of Appeals, that the fact that he is not in the grocery business precludes a finding that he could monopolize — or, of course, attempt to monopolize — the relevant market. This Court agrees because "it is axiomatic that a firm cannot monopolize a market in which it does not compete." Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1062 (2d Cir. 1996), vacated on other grounds, NYNEX Corp. v. Discon, Inc., 525 U.S. 128 (1998); see also FLM Collision Parts, Inc. v. Ford Motor Co., 543 F.2d 1019, 1030 (2d Cir. 1976), cert. denied, 429 U.S. 1097 (1977) (to prevail on an attempted monopolization claim, the defendant's "dangerous probability of success" in the relevant market must be shown). The end result of an attempted monopolization — as contrasted with a conspiracy to monopolize, a claim no longer before the Court — is not simply that the relevant market "be monopolized" but that the defendant be the monopolizer. See Discon, Inc., at 1062. At the end of the day and from everything in the record, Paige was a real estate developer, not a grocery store owner, who never intended to enter the "relevant market."
Such claim was dismissed in 1996 and, for whatever reason, was not addressed by the Court of Appeals.
Taking a slightly different tack, Tops argues that Paige had "market power" as such term is understood by the Court of Appeals. Citing K.M.B. Warehouse v. Walker Mfg. Co., 61 F.3d 123, 129 (2d Cir. 1995), Tops avers that market power is the power to control prices or exclude competition in the relevant market. Accordingly, the argument continues, because Paige had control over who could purchase his property, he had the power to exclude competition from the relevant market in a manner which could foster a monopolization of the Jamestown market. However, the plaintiff's depiction of the law is incomplete, at best, and at odds with the definition set forth by the Court of Appeals in the instant case — to wit, an accurate characterization of market power is "one which considers the defendant's relevant market share in light of other market characteristics." Tops Markets, Inc., at 100. As stated above, Paige had no market share and was not, in any sense, "competing" in the Jamestown grocery market. Thus, because the only evidence proffered by Tops as to a dangerous probability of success has been Quality's market share, there simply cannot have been any probability — let alone a dangerous one — that Paige would have achieved a monopoly in the Jamestown grocery market. Accordingly, Tops is not entitled to a new trial against Paige on the attempted monopolization claim.
For the reasons set forth above, it is hereby ORDERED that Tops' motion for judgment as a matter of law or for a new trial is denied in its entirety, that Tops and Paige shall appear before this Court on the 22nd September, 2000 at 3:00 p.m. (or as soon thereafter as the matter may be heard) to set a date for the damages phase of the trial on the injurious falsehood claim and that such phase shall be tried before the same jury that heard the liability phase insofar as such is practicable.
See Tr.Trans. at 3078.