Gordon BAUGHMAN, Appellant in No. 75-1536 v. COOPER-JARRETT, INC., et al. Appeal of WILSON FREIGHT FORWARDING COMPANY a/k/a Wilson Freight Company, in No. 75-1537
Nos. 75-1536, 75-1537
United States Court of Appeals, Third Circuit
Decided Feb. 18, 1976.
Argued Dec. 10, 1975.
Accordingly, we hold that the district court erred in finding that appellees had sustained their burden of proving irreparable injury. Such a finding is a necessary ingredient to the issuance of a preliminary injunction. National Land & Investment Co. v. Specter, supra. Therefore, the district court‘s order may not stand. Nor need we reach other issues tendered by the parties in this appeal, viz., the appellees’ likelihood of success on the merits, the effect of a preliminary injunction on other interested parties, or the public interest in the grant or denial of a preliminary injunction.
That part of the district court‘s order denying appellants’ motion to dismiss the complaints for want of jurisdiction will be affirmed; that part granting preliminary injunctions will be vacated.
ADAMS, Circuit Judge (concurring):
I agree with parts I and II and with section C of part III of the majority opinion. In reversing the grant of the preliminary injunctions entered in this case, however, I would limit our holding to the failure of the plaintiffs to demonstrate, in the record before the district court, irreparable harm. Such a course would avoid the resolution of issues that need not be decided at this time.
Some cost of compliance with a Federal Trade Commission order is concededly inevitable, but the record here does not show with particularity the burden such compliance would impose upon the individual plaintiffs. To find irreparable harm in this regard the district court appears to have relied only on statistical figures from governmental reports.1 A record this scanty is inadequate, in my judgment, to show irreparable injury by any standard. Thus, there does not appear to be any need for the Court to fashion a general rule—applicable to other factual situations—for determining whether the cost of compliance would inflict irreparable injury.2
Nor is there a basis in the record for concluding that differences in the extent of discovery, depending upon the type of proceeding available to the litigants, can never constitute irreparable harm.3 The record in this case does not establish that mandamus proceedings would necessarily occasion a scope of discovery so much narrower than the scope of discovery available in this suit for injunctive relief that plaintiffs would be irreparably harmed thereby.
Richard L. Rosenzweig, Rosenzweig & Rosenzweig, Pittsburgh, Pa., Arthur E. Siegel, Cincinnati, Ohio, for Wilson Freight Co.
Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
In these cross appeals the plaintiff Gordon Baughman, appellant in No. 75-1536, contends that the district court erred in reducing a judgment in his favor from $75,000 to $25,200, and the defendant, Wilson Freight Forwarding Company (Wilson), cross-appellant in No. 75-1537, contends that the district court erred in denying its motion for judgment n. o. v.1 We remand for a modification of the judgment.
I. PROCEEDINGS BELOW
Baughman, an over-the-road truck driver, brought suit against his former employer, Cooper-Jarrett, Inc., and four other trucking companies including Wilson, charging that the defendants conspired to blacklist him from obtaining work in the trucking industry. Relief was predicated on the Sherman Act § 1 and § 2,
The second trial commenced on October 9, 1974, against the three remaining defendants. After the jury was sworn but prior to plaintiff‘s opening statement two of the defendants, Cooper-Jarrett and Matlack, Inc., entered into a settlement agreement whereby they paid Baughman a total of $60,000 in compromise of the Sherman Act § 1 claim in return for a joint tortfeasor release. Baughman reserved all his rights against Wilson. The case went to trial against Wilson and the jury returned a verdict of $25,000 in Baughman‘s favor. Trebled pursuant to
Wilson moved for judgment n. o. v., and alternatively to reduce the judgment by crediting against it the $60,000 obtained in settlement from Cooper-Jarrett and Matlack. The court denied the motion for judgment n. o. v., but reduced the judgment to $25,200.2
II. WILSON‘S LIABILITY CONTENTIONS
Wilson makes two arguments in support of its contention that it is entitled to a judgment n. o. v. The first is that the court in a pre-trial ruling erred in failing to grant its motion for summary
The second argument is that there is no properly admitted evidence showing that Wilson was a participant in the conspiracy to blacklist Baughman and no properly admitted evidence of the conspiracy.
The only evidence tending to connect Wilson to the blacklisting conspiracy was the testimony of Baughman respecting a Wilson employee named Umberger. If his testimony was either improperly admitted or insufficient, then the remainining evidence, consisting for the most part of admissions of alleged co-conspirators, was not admissible against Wilson. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941).
Umberger was the Relay Supervisor or Local Manager of Wilson‘s Stanton freight terminal. Although employment applications were forwarded to Wilson‘s headquarters in Cincinnati before a hiring decision was made, Umberger screened out the majority of applications and communicated to applicants the hiring decision and the reasons therefor. Baughman testified over objection (42a):
Q. Go ahead. Tell the jury what Mr. Umberger, the terminal manager, told you and Mr. Fait about your application.
A. He said at that time that he was sorry he could not use me. He said the word was out from Cooper Jarrett that I was blacklisted, that he could not hire me.
Baughman had previously applied for a job with Wilson, and was asked to check back in ten days. The quoted testimony referred to a conversation which took place when he did so. If Umberger could make admissions on behalf of Wilson, the conversation is evidence that Wilson was acting in concert with the other alleged conspirators in enforcing a blacklist.
Wilson urges that Umberger had no authority to make such an admission on its behalf. Whether an employee has the authority of an agent to make admissions on behalf of his employer is determined by the law of agency. See
Wilson urges that even if there was evidence connecting it with the conspiracy the court erred in admitting over objection evidence of a statement by Clarence Frankel, a Cooper-Jarrett Vice President (32a):
“He [Baughman] will not drive any of Cooper-Jarrett‘s trucks ever again nor will he drive for any other freight company.”
The district court ruled that the statement fell within the state of mind exception to the hearsay rule. See
But the record contains other evidence of the existence of a conspiracy, and of the participation in it of Matlack and Wilson. That evidence included the statements made by Umberger, referred to above, and statements made by Matlack‘s terminal manager. Certainly Frankel‘s statement was admissible to show that Cooper-Jarrett intended to enlist the cooperation of others. The preferred course would have been to give a limiting instruction that Frankel‘s statement was not admissible to show the participation of Wilson or Matlack in the conspiracy. Cf. United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758, 762 n. 7 (1973). But since the evidence was admissible and against Wilson as proof of conspiracy merely cumulative, failure to give a limiting instruction was harmless error.3
We conclude that there is no basis for setting aside the jury‘s liability determination against Wilson.
III. THE REDUCTION OF THE JUDGMENT
Baughman does not dispute the rule that a plaintiff who has recovered an item of damage from one co-conspirator may not again recover the same item of damage from another conspirator. Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 348, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). Nor does either Baughman or Wilson dispute that the set-off is made against the trebled damage award, not merely against the compensatory amount determined by the jury. Flintkote Co. v. Lysfjord, 246 F.2d 368, 397-98 (9th Cir.), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957). Both sides, however, contend that the district court erred in computing the amount of the set-off. Wilson urges that $60,000 should have been deducted from $75,000 and judgment entered for $15,000 at most. Baughman argues that the set-off of $49,800 which the district court allowed was too high. This disagreement arises out of a trial ruling to which no objection was made.
At the second trial the court at Wilson‘s request, and without objection from Baughman, instructed the jury to award damages only for the period after which Wilson joined the conspiracy.4 There was evidence that a conspiracy existed as early as February, 1971, but there was no proof of participation by Wilson prior to August 24, 1971. The district court concluded that the jury‘s determination of damages in the amount of $25,000 covered damages for conspiratorial conduct after August 24, 1971, whereas the settlement by Cooper-Jarrett and Matlack covered damages for
The amount of credit to be applied against the judgment to reflect the proceeds of the settlement was a matter for the trial court to decide in the first instance. The court‘s findings of fact that $5,200 in damages was incurred prior to August 24, 1971 is not clearly erroneous. The jury verdict establishes the damages for the later period. Thus we must accept that the total of damages is $30,200. The only open question is what calculations should be made in arriving at the proper Zenith credit against the $75,000 judgment.
The theory on which the court in Flintkote Co. v. Lysfjord, supra, held that the credit for the payment from the settling conspirators should be applied to the trebled damage award rather than to the compensatory award prior to trebling was that all co-conspirators were liable for all elements of damage including the punitive damage resulting from trebling, and that the settlement payments must therefore be credited against all elements of damage included in the judgment. The district court purported to apply the Flintkote rule, but erred in one particular. It is true that the settling conspirators paid in compromise of their entire liability, including liability for the period from February, 1971 to August 24, 1971. But they were exposed to liability not only for single damages for that period, but for treble damages. Their payment discharged that total liability, not merely their potential liability for $5,200 in compensatory damages. Compliance with the Flintkote theory requires the following calculation:
Pre-August 24, 1971 damages, trebled $15,600
Post-August 24, 1971 damages, trebled $75,000
Total damages $90,600
Credit $60,000
Net uncompensated damages, trebled $30,600
By not taking into account the settling conspirators’ potential liability for treble damages for the pre-August 24, 1971 wage losses, the district court allowed too great a credit against the $75,000 judgment. Judgment should have been entered for $30,600, representing the difference between the trebled verdict and the pro rata share of the settlement fund.
We have some difficulty with either the district court‘s approach or our own, because while we can say with some confidence that the district court‘s calculation of $5,200 is not clearly erroneous, it is not at all certain that the court‘s calculation and the jury‘s verdict were arrived at by comparable methods.5 Nevertheless, the Flintkote rule that the settling defendants settled their treble damage liability seems to us sound. Because the court in its charge to the jury divided the damage periods, some means of apportioning the settlement between the two periods must, in the absence of any agreement, be devised. That which we have set out seems as fair as the circumstances in this record permit.
IV. CONCLUSION
The order denying Wilson‘s motion for judgment notwithstanding the verdict will be affirmed. The order reducing the judgment from $75,000 to $25,200 will be vacated and the cause remanded to the district court with directions to enter a judgment in the amount of $30,600.
ROSENN, Circuit Judge (concurring and dissenting).
I agree with the views expressed in Parts I and II of the majority‘s opinion. I am constrained, however, to dissent from its views as to the reduction of judgment as set forth in Part III. Since I believe the district court correctly determined the amount to be set off against the treble damage award, I would affirm the judgment of the district court in all respects.
The district court directed the jury to compute damages from August 24, 1971, the date that the defendant Wilson joined the conspiracy, rather than from its inception. The district court appropriately trebled the compensatory verdict of the jury as returned, $25,000, and reached the sum of $75,000.
The question then before the district court was the credit to be allowed under Flintkote v. Lysfjord, 246 F.2d 368 (9th Cir.), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957), for the settlement entered into between the plaintiff and Cooper-Jarrett and Matlack, Inc. Since the $60,000 settlement covered the entire period of the conspiracy, the district court properly determined that only 83 percent of this sum, or $49,800, should be attributed to the post-August 24, 1971, damage period presumably considered by the jury.1 In view of the district court‘s instructions to the jury, this allocation was proper and was not inconsistent with the Flintkote principle. The net realized and the sum for which it entered judgment was $25,200. I believe the principle applied and its mathematical computation was correct.
Baughman contends that Wilson‘s liability as a co-conspirator should extend to the beginning of the conspiracy and should not have been confined by the district court‘s charge to the period after August 24, 1971. As he and the majority recognize, however, Baughman‘s failure to object to the instruction precludes him from raising the alleged error on appeal under
Having thus disavowed any intention of considering Wilson‘s liability beyond the period referred to in the district court‘s charge, the majority then proceeds to remold the jury verdict to include, in effect, pre-August 24, 1971, damages. It deducts the entire settlement amount of $60,000 from the total potential trebled damages of $90,600 and awards Baughman the difference, thus allowing him all of his damages prior to August 24, 1971, despite the unchallenged instruction limiting damages to the period subsequent to that date.
Such a remolding of the verdict carries implications for the seventh amendment right to trial by jury. The United States Supreme Court has held that the proper remedy for an inadequate verdict is the grant of a new trial rather than the assessment of additional damages. Although a federal court may substitute a remission of the excess for a new trial where a verdict is too large, it cannot enlarge damages in the same way.
[T]he remittitur has the effect of merely lopping off an excrescence. But where the verdict is too small, an increase by the court is a bald addition of something which in no sense can be said to be included in the verdict.
Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935). The Court concluded that federal courts have no power to so invade the right to a jury determination of the extent of a defendant‘s liability.
In the instant case, the majority has ignored established principles by disturbing a judgment entered on the verdict of a jury supported by sufficient evidence, in spite of the absence of objection to the charge. Hoffman, supra; Moomey v. Massey Ferguson, Inc., 429 F.2d 1184, 1187 (10th Cir. 1970); Manning v. New York Telephone Co., 388 F.2d 910, 912 (2d Cir. 1968); Green v. American Tobacco Co., 325 F.2d 673, 676 (5th Cir. 1963), cert. denied, 377 U.S. 943, 84 S.Ct. 1349, 12 L.Ed.2d 306 (1964). There is here no fundamental error requiring an exception to the general rule.
I would affirm the judgment of the district court.