*1 652 to create a liber judgment a a civil holtz holds is insufficient [of] or appeal
action has “struck prisoner who Perhaps action” must or Wiscon ty property interest. filing full fees. prepay out” since but system changed sin’s has not, § has suit Spiess then 1983 who launched collateral Spiess, As for deny his procedures used attack on the file would be frivolous. parole: once for release application of applications five for certificates The § have been used. should again 1983 appealability are dismissed unneces- custody; release from Spiess not seek sary. the district court The of application of his wants he reconsideration vacated, and matter Spiess’s of this procedures. Claims using different with is remanded instructions to dismiss Supreme kind that reached the Court have improper, with- the collateral attack as uniformly been handled under have to a civil under prejudice out action v. e.g., Board Pardons § 1983. § for (Spiess’s application 1983. leave
Allen, 96 482 107 S.Ct. U.S. denied, how- proceed pauperis forma v. L.Ed.2d Greenholtz Inmates ever, had no hope he of success on for Complex, Penal U.S. Nebraska (1979). for obtaining or merits remand L.Ed.2d 668 S.Ct. Clark opinions our own on the Huggins, His appeal decision on merits. subject, say challenges proce also faith, Spiess not in owes the good applications to consider employed dures procedures entire under of New- fee § parole civil under are actions 1983 lin.) judgments other are af- four § under and not collateral attacks firmed, against two strikes assessed § unless the contends prisoner appellate fees appellant, each proce application preferred of his paid must be in full. promptly led dures would have to his immediate district therefore release. § have 2241 ac
should not dismissed premature, inviting Spiess
tion as to file remedies; exhausting
another after
state
petition
it should have dismissed the
with
INC.,
MINDGAMES,
Plaintiff-
§
ground
prejudice
pro
on the
Appellant,
course,
remedy.
Of
vides
exclusive
v.
§
under
Spiess faces obstacles
1983 too.
thing,
For one
exhaustion
administra
COMPANY,
WESTERN PUBLISHING
prisoners’
now is
required
tive remedies
INC., Defendant-Appellee.
1997e(a);
§
1983 suits. See
U.S.C.
No. 98-1879.
Department
Perez v. Wisconsin
Correc
tions,
us who have served of their terms have such an
two-thirds
entitlement; prisoners may other have no desire, hope
more than a which Green- [*] Hon. Thomas E. Fairchild voted grant petition rehearing. *2 Barack, E. (Argued),
Wendi Sloane Fer- razzano, Kirschbaum, Nagel- Perlman & berg, IL, Chicago, for Plaintiff-Appellee. Campion E. (Argued), Kersten Kersten McKinnon, Milwaukee, WI, for Defen- dant-Appellant. POSNER,
Before
Chief Judge, and
WOOD,
FAIRCHILD and DIANE P.
Judges.
Circuit
POSNER,
Judge.
Chief
This is a diversity suit for breach of
contract, governed by Arkansas law be-
cause of a
provision
choice of law
MindGames,
contract.
plaintiff,
The
formed in March
by Larry
of 1988
Black-
well
to manufacture and sell an adult
Endeavor,”
game,
board
“Clever
that he
games
invented. The first
shipped in
the fall of 1989 and
the end
later, 30,000
of the year,
days
had been
sold.
In March of
MindGames li-
defendant,
the game
censed
to the
West-
ern, major
of games.
marketer
very
had marketed the
successful adult
games
board
“Trivial Pursuit” and “Pic-
tionary”
thought
“Clever Endeavor”
might be as successful. The license con-
tract, on which
premised,
this suit is
re-
quired
Western to
a 15
percent royalty
on all
sold.
contract was
its terms to remain
until
effect
the end of January of
year
for another
if before then Western
paid MindGames at least
million in
$1.5
Plus, Inc.,
Temps
under
con-
royalties due
Dawson
the form- of
(1999).
otherwise,
subsequent
tract or
an annual
paid
years as well Western
rejection
MindGames’
$300,000.
fee of
renewal
claim the renewal fee for
second
contract,
the first
During
third)
(and
*3
clearly
year
a
the
fortiori
165,000
of
copies
“Clever
sold
Western
contract conditioned West
correct. The
$600,000
paid MindGames
Endeavor”
for
to renew the contract
a
right
ern’s
that,
fell precipi-
After
sales
royalties.
fee
its
a renewal
of
year
paying
second
on
told by
not
how
tously (though we’re
(minus royalties already paid);
million
$1.5
much)
parties continued under the
but the
a
it was
on the terms of
renewal
silent
31, 1994,
January
though
through
contract
parties
the
adopted by
agreement
a new
of
$900,000 ($1.5
not
the
pay
Western did
option
of an
rather than
the exercise
$600,000)
the
contract
million minus
If
granted by
original
contract. Mind-
required
pay
it to
order to
have
would
the con
hadn’t wanted to renew
Games
a
to extend the contract for
entitled
insisted,
then
tract and Western
West
February
of
year
expiration.
after its
had to
the fee. But if
ern
have
would
Later that
parties finally parted.
1994 the
right
not invoke a contractual
Western did
suit,
brought this
MindGames
renew,
parties
if instead
entered
to
$900,000, plus
some
lost
of
seeks
renew the con
agreement
into a new
to
million that MindGames claims
$40
tract,
to
right
MindGames had no
then
earned had not Western failed
would have
contract;
renewal fee fixed
carry
promotional obligations
out
right was conditional on Western’s exer
it,
on
imposed
plus
contract
cising
right
contractual
to renew. A
its
$800,000
theory
that Western re-
in a
right
conditional
contract
not
year, begin-
the contract for a third
newed
right
an enforceable
until
con
become
February
Western
off
ning
sold
(Second)
occurs,
dition
Restatement
remaining inventory of “Clever Endeav-
its
225(1) (1981),
§
unless noncom
Contracts
year.
in that
or”
the condition is excused
pliance with
Bowman,
243 Ark.
agreement, Uebev.
granted
The district court
sum
(1967);
Normand Orkin
mary judgment
holding
for
(7th
908, 912
Exterminating
the contract did not entitle MindGames
law,
Cir.1999),
by operation
Farns
fee
“new
a renewal
Arkansas’s
worth,
8.3,
p.
§
supra
as where the
recovery
rule barred
of lost
business”
wrongfully pre
party
other
to the contract
(E.D.Wis.1996);
profits.
F.Supp.
id.,
occurring,
vents
condition from
(E.D.Wis.1998). Although
F.Supp.
8.6,
544-45; Restatement,
§
pp.
contract is enti
the victim of breach of
b,
alleged,
§
comment which is
damages,
to nominal
Mason v. Rus
tled
duty
right
had no
to exercise its
senberger, 260 Ark.
propriate definition
ler,
only a
fraction of new books
tiny
when
gained,
see what would
find it hard to
Damages
must be
achieve
success.
of the serviceable and
given the existence
dreamed,
though
proved,
just
speculative-
of excessive
familiar standard
degree of
speculation
permissible
“some
may
made sense at
rule
have
ness. The
in
because
computing damages,
reasonable
in
time;
reduction
decision costs
one
remedy ought
doubts as to
be resolved
brought
avoiding
about
uncertainty
wrongdoer.”
against the
Jones Motor Co.
swamped
mire
have
speculative
Liese,
Holtkamp,
Beckemeier & Chil
resulting
costs
from the
increased social
P.C.,
dress,
supra, 197 F.3d at
see
damages
inadequate
that a
systematically
Restatement,
supra, §
comment a.
But today
rule
“new
decrees.
business”
sufficiently sophis-
have become
the courts
suggest
This is
claims,
lost-earnings
analyzing
in
ticated
earnings
property
on intellectual
precedent
accumulated sufficient
recovered;
can
never
“entertain
speculativeness
of undue
standard
in
damages”
ment
recoverable
awards,
to make the balance of
just
contract
That
breach of
cases.
would
tip
the rule.
against
costs and benefits
be a variant
the discredited “new busi
case,
logic
are far in this
event we
important
ness” rule. What
time,
factory
as well
from the ice
whose
Blackwell had
track record when he
no
delayed
Elec-
opening
General
“Clever
could not
created
Endeavor.” He
tric
We
doubt
Company.
greatly
he
point to other
had invented
there is a “new business” rule
the com- and
sold
that had
well. He was not
today,
if
mon law of Arkansas
there is
can
position
bestselling
author who
surely
beyond
not extend so far
prove
past
from his
his new
success that
only
facts of
case in which the rule was
book,
pro
which the
defendant failed
justify
ever invoked to
its invocation here. mote,
certain,
likely
would have been
—not
for,
authority
and no
There is no
common
enjoyed
of course—to have
a success com
to,
sense
such an extension.
appeal
parable
average
previ
to that of the
of his
only
promoted
ous books
it had
ques
But that
us with the
leaves
promised. That
be like
of a
a case
speculation
estimating
tion of undue
*7
by
entrepreneur
business launched
damages. Abrogation of the “new busi
with a
track record.
proven
produce
ness” rule does
free-for-all.
period
precontract
the
sales
roy
What
claim of
makes MindGames’
lost
195,000
first
year of
contract
total of
alties
indeed dubious is not
“new busi
sold;
copies of “Clever Endeavor” were
ness”
the fact that
of a
rule but
the success
public
then
fizzled. The
fickle. It
sales
movie,
game,
board
like
of a
book
possible
that if
marketed
Western had
is so
Here
uncertain.
newness enters into
more
game
vigorously, more
judicial
damages
claim
consideration of
sold,
equally
more
have been
but an
if not
not as a
as a
applying
rule but
factor in
plausible possibility is that the reason that
start-up
standard.
as a
company
Just
game
vig-
Western didn’t market the
more
permitted
should not be
to obtain pie-in-
orously
correctly
sensed
the-sky damages upon allegations that it
up.
demand had dried
begin
was snuffed out before it could
(unlike
Marvell,
operate
rejected,
if that
factory
ice
Even
alternative
we
begin production,
do
how
number of
copies
did
albeit a little
not see
alleged
later
planned), capitalizing
than
fantasized would have been sold but
earnings
huge
given
the evi-
present
sought
into
value
breach could
determined
damages,
presented
summary judgment
so a novice writer
should
dence
(a
permitted
damages
proceedings
potentially important quali-
to obtain
from his
fication,
course);
and so MindGames’
trict court’s judgment;
we
of course
excessively
is indeed
affirm
summary
an award of
judgment on
speculative.
e.g., Gentry v. Little
any ground that has not been forfeited or
Co.,
Machinery
Rock Road
232 Ark.
waived in the district court. United States
339 S.W.2d
Hillside En
Jackson,
207 F.3d
Cir.
terprises
Corp.,
v. Carlisle
69 F.3d
2000).
did
respond
MindGames
to the
(8th Cir.1995);
R,
K & Inc. v. Crete
argument
reply
in its
pointed
brief.
It
Storage Corp., 194 Neb.
231 N.W.2d no evidence from which
royalties
lost
could
AGF,
see also
Inc. v. be calculated to
a rough approxima
Co.,
Treating
Lakes Heat
Great
555 tion. We find its
eloquent
silence
N.E.2d at 640.
proceedings
Those
argument
Western’s
compelling, and so
completed with no
having
evidence
in favor of Western is
presented from which a rational trier of
Affirmed.
fact could conclude on this
record
specific quantity,
some
or for that matter
FAIRCHILD, Circuit Judge, dissenting
some broad but bounded range of alterna
in part.
estimates,
copies
tive
of “Clever En
(1)
agree
I
that MindGames’ claim for a
deavor” would have been sold had Western
renewal fee for the
following the ini-
honored the contract. MindGames ob
tial term of the Licensing Agreement was
$600,000
royalties
tained
on sales of
(2)
dismissed,
properly
we are not
165,000 copies
game,
implying that
bound by
Light
Marvell
& Ice Co. v. Gen-
Western would have had to sell
than
more
eral Electric
162 Ark.
259 S.W.
copies
generate
million
mil
the $40
(1924)
to affirm the dismissal of Mind-
lion in
royalties
that MindGames seeks
claim
royalties
Games’
for loss of
caused
Big
recover. Cf. Boxhorn’s
Muskego
do, however,
breach of contract.
I
Club,
Gun
Inc. v. Electrical Workers Local
respectfully disagree with the conclusion
that,
law,
as a matter of
that claim is too
occurred,
When the breach
speculative
support
an award of dam-
should have terminated the contract and
ages.
sought
distribution
other means. See
Farnsworth,
12.12,
supra, §
pp. 806-08.
This
was never a claim which Mind-
The fact
did not do so—that so far
sought
Games
to recover lost
appears
it has made no effort to market
operation
of a business. The
“Clever Endeavor” since the
sought
market for
would be measured
game
collapsed
telling
1991—is
evi- which
obliged
Western would have been
dence
lack
of a
of commercial promise
sales which did not occur because
unrelated to Western’s conduct.
alleged
perform
Western’s
failure to
obligation
pay roy-
contract. Western’s
*8
Although
in
Western
its brief in
games
alties arose from the
of
sales
manu-
this court spent
misguid
most of its time
factured,
it,
promoted
and sold
and
rule,
edly defending the “new business”
whether MindGames
a profit,
showed
(a
clinging to Marvell for dear life
well as
history,
MindGames’ lack of
was
vulnerable,
seemingly
point,
on
however
wholly
questions
irrelevant. The ultimate
a security blanket
that no lawyer feels
would
be whether there was a breach
without),
argue
comfortable
it did
in
that
Western and-whether the breach caused a
any event
royal
MindGames’ claim for lost
loss of sales.
ties
speculative
ground
was too
to
an
award of
for
argu
that loss. The
expectations.
Sales did not meet
In the
ment was brief but not so brief
fail to period
January
as to
from March
1990 to
put
31,1991, 165,000
sold;
on
possible
MindGames
notice of a
in
ground
31, 1992,
alternative
upholding
year
58,113;
the dis-
ending January
in
31, 1993, 26,394;
a loss
This
January
breaches caused
of sales.
such
year ending
term,
a waiver or forfei-
the initial
should
be deemed
in the
after
and
an
to do
of
opportunity
totaled
ture of
so because
7,438. The
in the initial term
sales
motion
$4,000,000
complete reliance in its
and
Western’s
approximately
Marvell,
new
rule
on the
business
and
January
$600,000.
after
Soon
which,
applied,
prevent
if
of
in con-
would
sufficiently
was
interested
Western
and
of
a mini- breach
causation
loss. Western’s
agree
to
to
tinuing as licensee
breach,
$27,500
coming motion did not reach the issue of
royalty
mum
require
establishing
that
and
would
complaint alleged
year. MindGames’
that
oc-
prove
MindGames to
the breach
games produced
a substantial number
Although
loss of sales.
meet
stan-
curred
caused
quality
failed to
by Western
support
in
in
dards;
its memorandum
promote
failed to
Western
sell;
making
motion did include a
to
its
its
section
reasonable efforts
make
product
that the
of new
point
success
did not meet standards under
efforts
industry
especially
entertainment
in-
recognized
or those
agreement
predict,
to
it used
to
point
that
difficult
that
dustry.
position
It MindGames’
busi-
support
argument
the new
failures
loss of
these
caused
sales.
particularly appropriate
rule
ness
was
summary
partial
motion for
Western’s
case,
Supreme
and that the Arkansas
this
on
new busi-
premised
unlikely
would
to retreat
from
Court
an-
perceived
rule which
ness
Western
under
the new business rule
circumstances
Marvell,
nounced
district
as-
squarely
like these. Western did not
If, as
on that
granted
motion
basis.
sert,
ground,
as an
that Mind-
alternative
agree,
control this
we all
Marvell
could
prove
Games
a reasonable
case,
applicable
then the
Arkansas doc-
certainty
any
breach
Western
re-
trine is that MindGames is entitled to
Rather,
caused loss of sales.
Western
Mind-
any royalties
cover
on sales which
strictly
urged that the district court should
prove
certainty
can
ato reasonable
Games
apply the new business rule.
made had
car-
would
Western
court,
In this
on
again
out the contract. The rule that dam-
relied
ried
rule,
also
uncertain
recov- Marvell
the new business
ages
cannot be
court,
itas had in the district
uncertainty
arguing,
does not
as to
apply
ered
derived,
case,
type
involving
product
value of
this
a new
the benefits
one
industry,
as to
benefit
in the entertainment
is not
uncertainty
whether
Supreme
Halsey
would be derived at all. Jim
where
Arkansas
Court
Bonar,
461, 467-68,
application
Ark.
683 retreat
its
Inc.
Russell,
at
Although
pages
rule.
S.W.2d 898
Crow v.
business
(Ark.1956).
the inherently specula-
its brief
asserted
rely on waiver or forfeiture.
I proceedings would remand for further part complaint. this of MindGames’ VELA, Plaintiff-Appellant,
Rebecca VILLAGE,
VILLAGE OF SAUK d/b/a Village Department,
Sauk Police
Defendant-Appellee.
No. 99-3262. Appeals,
United States Court of
Seventh Circuit.
Argued April
Decided June