MOSTLY MEDIA, INC., а Nebraska Corporation; Pixel Image Transformatte, Inc., a Nebraska Corporation; and Imageware, Inc., a Nebraska Corporation, doing business as Cottonwood Communications, Inc., Appellants, v. U.S. WEST COMMUNICATIONS; U.S. Marketing Resources Group, Inc., doing business as U.S. West Direct; U.S. West; U.S. West Communications Group, Inc.; Interactive Video Enterprises, Inc.; U.S. West Interactive Services, Inc.; U.S. West Multimedia Communications, Inc.; U.S. West Multimedia Services Group, Inc.; U.S. West Advanced Technologies, Inc.; U.S. West Business Resources, Inc., Colorado Corporаtions; U.S. West Enhanced Services, Inc., a Washington Corporation; and U.S. West Multimedia Services of Omaha, Inc., Appellees.
No. 98-2687.
United States Court of Appeals, Eighth Circuit.
Submitted: April 21, 1999. Filed: Aug. 6, 1999.
186 F.3d 864
We do not entertain new arguments on appeal from the grant of summary judgment. See Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir.1999), cert. denied, U.S., 120 S.Ct. 174, L.Ed.2d (1999). Further, our review of the argument underlying Mannis‘s Rule 60(b) motion is properly sought in an appeal from the order denying Rule 60(b) relief. See Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 & n. 7 (8th Cir.1991) (appealing party must file new appeal if Rule 60(b) motion is denied). Because there is nothing for us to consider on the merits, we must dismiss Mаnnis‘s appeal. Cf. Carter v. Lutheran Med. Ctr., 87 F.3d 1025, 1026 (8th Cir. 1996) (appeal must be dismissed because brief presents no question for court to decide).
Appeal dismissed.
Christopher D. Curzon, Omaha, NE, argued, for Appellants.
Tory M. Bishop, Omaha, NE, argued, for Appellees.
Before: RICHARD S. ARNOLD and WOLLMAN,1 Circuit Judges, and WOLLE,2 District Judge.
RICHARD S. ARNOLD, Circuit Judge.
This appeal arises from a lawsuit brought in 1994 against U.S. West and several of its affiliates. The appellants, Mostly Media, Inc., Pixel Transformatte, Inc., and Imageware, Inc., allege that U.S. West violated antitrust laws, discriminated against them in violation of the
We review briefly the events at the center of this dispute. Mostly Mediа and the other appellant corporations sought to participate in a video dialtone trial conducted by U.S. West in Omaha, Nebraska, in 1995 and 1996. The trial was the result of a decision by the Federal Communications Commission to allow telephone companies to provide interactive television programming to consumers’ homes. Mostly Media, a company that produces television programming, alleges that U.S. West excluded it from the trial by refusing to provide technical information and by requiring a $100,000 lettеr of credit, and that U.S. West discriminated against it in favor of a U.S. West partner. See
II.
We have examined carefully the issue of damages in this casе, and we conclude, as the District Court did, that Mostly Media cannot prevail because it did not establish sufficient proof of its damages. With respect to the allegations concerning antitrust violations and the video dialtone trial, Mostly Media must have been able to prove, to a reasonable degree of certainty, that its involvement in the trial would have been profitable. Although inferences may be used to establish the precise amount of injury, speculation is not permitted.
Mostly Media presented sevеral theories to prove its injuries. First, Laurie Dahlgren, an owner of one of the plaintiff corporations, testified that Mostly Media projected revenues of more thаn $4.4 million in the first year of operating one of three digital channels it had proposed, $2.4 million of which represented profit. Her testimony was supported, in the main, by Dr. Jerome Sherman, an economist who testified on behalf of the plaintiffs, although
Mostly Media sought to compare itself to RSVP Information, Inc., a company that entered into a jоint venture with U.S. West. According to Mostly Media, RSVP participated in the video dialtone trial in a manner substantially similar to the manner in which it would have participated, had U.S. West not acted illegally in excluding it. The plaintiffs introduced a preliminary business plan prepared for RSVP. Dr. Sherman, who reviewed the plan, testified that the estimated value of the joint venture was more than $8.5 million. In addition, Dr. Sherman testified that RSVP realized an immediate benefit of $505,000 from the joint venture. This theory is based upon evidence that U.S. West, which invested more than $252,000 in the joint venture, owned a third of the business, while RSVP, which invested about $35,000, owned two-thirds of the business. Assuming a third of the joint venture was worth more than $252,000, Dr. Sherman testified, two-thirds would be worth about $505,000. We would charаcterize this sort of reasoning as mathematical alchemy.
Mostly Media also introduced evidence that Interface Communications earned $6 million as a result of its participation in the trial. This amount, however, represents the sale of assets (a subscriber base and programming rights) that remained at the conclusion of the trial. According to U.S. West, in addition, there are important differences between Mostly Media and Interface Communications, namely that Interface provided analog cable television programming, while Mostly Media did not.
With respect to damages caused by the allegedly negligent provision of telephone services, Ms. Dahlgren estimated that Mostly Mеdia sustained a loss of more than $1.4 million. This figure was arrived at by projecting a constant rate of growth, and subtracting from that number the amount of actual sales. Dr. Sherman testified that declining revenues resulted in a loss to the company of about $317,000, although he testified that he did not know whether telephone problems actually caused the loss.
Ruling from thе bench at the close of the plaintiffs’ case, the District Court held that there was insufficient proof of damages. Concerning Mostly Media‘s claim that it lost profits as the result оf inadequate telephone service, the Court said that it “is speculation and conjecture and I cannot see that the plaintiffs have provided concretе evidence that profits lost by the plaintiffs were the direct result of the conduct on the part of U.S. West or the defendants....” Trial Tr. at 1001.
Regarding the video dialtone trial and Mostly Mеdia‘s claim that RSVP occupied a place in the trial comparable to one it could have occupied, the District Court disagreed, saying that “the comparison falls short because the approach that was used by Dr. Sherman is not based on sufficient evidence to show that there was a comparable basis.... I do not beliеve that Dr. Sherman nor the evidence have established that there was sufficient similarity between RSVP and the plaintiffs so that we have an adequate basis for comparison....” Triаl Tr. at 1007. In addition, we note that Dr. Sherman testified that the joint venture, which never operated, projected a first-year loss of $545,000.
With respect to Mostly Media‘s other theory оf lost profits, which was based upon its own business plan, the Court held that “the whole approach is just fraught with speculation.” Id. at 1007-8. The Court said that it had not “heard anything that indicates thеre was any revenue generated during this video dialtone trial period,” and that “merely relying upon this expected or anticipated profit of business without any underlying supportive data [was not] sufficient.” Id. at 1008. The Court concluded that it “would not, under the circumstances, submit the question of damages as it‘s my conclusion that the plaintiffs’ evidence regarding dаmages is much too speculative
We agree with the District Court that the proof of damages was too speculative. The burden of proof required of a plaintiff in a lost-profits case is admittedly heavy, and the plaintiffs in this case have not met it. The evidence with respect to the allegations of inadequate telephone sеrvice is simply not sufficient. The video dialtone trial was a new and unproved business opportunity. No one knew whether it would work, and, in fact, it did not. The business plans developed by Mostly Media and RSVP were nothing more than optimistic projections for an enterprise that never got off the ground, and the money that Interface Communications earned wаs for selling U.S. West assets that remained after the trial.
Accordingly, we affirm, substantially for the reasons given by the District Court.