CMM Cable Rep v. Ocean Coast

April 11, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1480
DENNIS SIROIS,
Plaintiff, Appellant,
v.
MAINE STATE PRISON, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
Dennis Sirois on brief pro se.
Per Curiam. Dennis Sirois appeals the dismissal
pursuant to 28 U.S.C. 1915(d) of his pro se complaint
alleging constitutionally deficient medical treatment. His
suit under 42 U.S.C. 1983 -- against the prison entity, its
warden and deputy warden, a medical administrator, a John Doe
nurse, and the entire medical staff at the prison -- alleged
various instances of failure to provide medical treatment.
Specifically, Sirois claimed that the defendants refused to
treat an abscess that resulted from an injection of
medication administered on March 2, 1994. The complaint
sought declaratory and injunctive relief, as well as monetary
damages. The magistrate-judge recommended that the complaint
be dismissed as frivolous. Sirois objected, but the district
court adopted the recommended decision and dismissed the
complaint.
Although the district court may have erred in
dismissing the complaint as frivolous under 1915(d) since
Sirois' claims are at least arguable, see Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989), we nonetheless affirm
on the basis that the error was harmless. See J.E. Riley
Inv. Co. v. Commissioner, 311 U.S. 55, 59 (1940); Doe v.
Anrig, 728 F.2d 30, 32 (1st Cir. 1984).
To state a cognizable Eighth Amendment claim based
on medical mistreatment, "a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs." Estelle v. Gamble,
429 U.S. 97, 106 (1976). Our review of the record satisfies
us that Sirois has not alleged medical needs of sufficient
seriousness to warrant Eighth Amendment scrutiny. Hudson v.
McMillian, 112 S. Ct. 995, 1000 (1992). The condition
suffered as a result of the injection appears to have been
relatively minor. There are no allegations of fever, and
Sirois was vague about the severity and duration of pain, as
well as the number of treatment requests made. It is
acknowledged that the condition was treated after the filing
of this complaint, seemingly to Sirois' satisfaction. Even
treating his objections to the magistrate's recommended
decision as amendments, we are persuaded that the complaint
failed to state a cognizable Eighth Amendment claim.
Affirmed.
Affirmed.
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2172
CMM CABLE REP., INC.,
d/b/a CREATIVE MEDIA MANAGEMENT, INC.,
Plaintiff, Appellant,
v.
OCEAN COAST PROPERTIES, INC.,
d/b/a WPOR-FM, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Anne S. Mason, with whom Mason & Assocs., P.
A., John H. Rich III, William Sheils, and Perkins, Thompson,
Hinckley & Keddy were on brief, for appellant.
James G. Goggin, with whom Roy S. McCandless
and Verrill & Dana were on brief, for appellees.
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March 6, 1995
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SELYA, Circuit Judge. CMM Cable Rep., Inc. (CMM),
SELYA, Circuit Judge.
plaintiff below, appeals from the district court's denial of
preliminary injunctive relief associated with claims of
copyright infringement, trademark infringement, and unfair
competition.1 We dismiss the appeal as moot.
I
I
Because this case turns principally on its present
procedural posture, we do no more than skim the facts.
CMM does business under the name and style of
"Creative Media Management." It devises promotional
strategies to assist radio stations in acquiring and
retaining listeners. CMM claims to have created a
promotional contest called "PAYROLL PAYOFF ." In due season,
it trademarked the name and copyrighted various materials
designed for use in executing promotional campaigns that
featured the contest. The mechanics of PAYROLL PAYOFF are
not relevant to the mootness issue, and rehearsing them would
serve no useful purpose.2
1. In point of fact, the district court did not deny CMM's
motion for preliminary injunction outright, but granted a
small measure of relief. On appeal, CMM complains that the
court gave it considerably less than its due, drawing the
injunction in much too crabbed a fashion.
2. We refer readers who thirst for greater knowledge to a
more detailed account of the PAYROLL PAYOFF concept
contained in CMM Cable Rep., Inc. v. Keymarket
Communications, Inc., 870 F. Supp. 631, 633-34 (M.D. Pa.
1994).
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CMM unsuccessfully pitched the PAYROLL PAYOFF
promotion to radio station WMGX, its regular client in the
Portland, Maine, market. Subsequently, a competing station,
WPOR,3 tried to acquire the right to run the contest. CMM
refused to deal out of loyalty to WMGX. WPOR then took
matters into its own hands and "created" (or so it says) a
contest-type promotion, reminiscent in some respects of
PAYROLL PAYOFF , called "PAYDAY." WPOR began broadcasting
its PAYDAY contest in the fall of 1994.
II
II
Unconsoled by the bromide that imitation is the
sincerest form of flattery, CMM brought suit in the federal
district court charging, among other things, copyright
infringement, trademark infringement, and unfair competition.
CMM's complaint prayed, inter alia, for damages, equitable
remedies, and attorneys' fees. In addition, CMM moved for
both temporary and preliminary injunctive relief to halt
WPOR's use of the PAYDAY contest pendente lite.
The district court refused to issue a temporary
restraining order. Instead, it held an evidentiary hearing
and, on November 4, 1994, granted a limited preliminary
3. Defendant Ocean Coast Properties, Inc. operates WPOR
(sometimes referred to by plaintiff as WPOR-FM). Defendants
Robert Gold, Phillip Corper, and William Therriault are all
interested in the station's operation. For simplicity's
sake, we refer to the defendants, collectively, as "WPOR" or
"appellees."
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injunction prohibiting further production and distribution of
the brochures that WPOR had prepared to help promote its
PAYDAY scheme.4 The court refused to enjoin WPOR from
proceeding with the contest proper, however, ruling that CMM
had shown scant prospects of success on its principal claims.
This appeal ensued.
While the appellate process was underway, WPOR
moved to dismiss the appeal on grounds of mootness. In
support, it averred that the PAYDAY contest had run its
course, and was no longer being broadcast. CMM objected to
the proposed dismissal. Though admitting that the contest
was off the air, CMM asserted that its appeal could not
fairly be characterized as moot. On February 9, 1995, we
heard arguments spanning both the question of mootness and
the merits of the appeal.
III
III
A federal appellate court may only exercise
jurisdiction over actual "cases" or "controversies." U.S.
Const. art. III, 2, cl. 1. The instant appeal provides
this court with no live controversy to resolve, and, thus, we
lack appellate jurisdiction. We explain briefly.
This is an interlocutory appeal. It is brought
strictly and solely to test whether the district court abused
4. The court determined that CMM would probably succeed in
showing that the brochures infringed existing copyrights.
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its discretion in withholding certain provisional relief.
The relief sought is in the nature of a preliminary
injunction. The purpose of a preliminary injunction is to
preserve the status quo, freezing an existing situation so as
to permit the trial court, upon full adjudication of the
case's merits, more effectively to remedy discerned wrongs.
See Chalk v. United States Dist. Court, 840 F.2d 701, 704
(9th Cir. 1988); American Hosp. Ass'n v. Harris, 625 F.2d
1328, 1330 (7th Cir. 1980). The court's interim injunctive
decree attempts to prevent further injury by maintaining the
status quo, cf. Narragansett Indian Tribe v. Guilbert, 934
F.2d 4, 5 (1st Cir. 1991) (listing the "potential for
irreparable injury" as a standard prerequisite for the
granting of a preliminary injunction), thus enhancing the
court's ability, if it ultimately finds for the movant, to
minimize the harmful effects of the defendant's wrongful
conduct.
The appealability of orders "granting, continuing,
modifying, refusing or dissolving" preliminary injunctions,
28 U.S.C. 1292(a)(1), fits hand-in-glove with this purpose.
Indeed, the impetus behind the statutory exception to the
"final judgment" rule that allows an immediate appeal of an
order refusing a preliminary injunction is to prevent
irreparable harm to a litigant who, otherwise, might triumph
at trial but be left holding an empty bag. See United States
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v. Cities Serv. Co., 410 F.2d 662, 664 (1st Cir. 1969).
Pyrrhic victories, after all, are often cold gruel in the
eyes of prevailing parties and do little to burnish the
public's perception of the judicial system. We think it
follows that, when this harm-preventing function cannot be
effectuated by the successful prosecution of an interlocutory
appeal from the denial of interim injunctive relief, then the
viability of the appeal itself is called into question. See,
e.g., Bank of N.Y. Co. v. Northeast Bancorp, Inc., 9 F.3d
1065, 1067 (2d Cir. 1993).
Such a configuration exists here. Because WPOR has
finished airing its PAYDAY contest, this appeal seeks to
enjoin an event that has already fully occurred. No mandate
that we might issue can turn back the pages of the calendar
and either stop the commission of the allegedly infringing
act or fully palliate its effects. Though federal courts
possess great authority, they lack the power, once a bell has
been rung, to unring it. In short, no justiciable
controversy exists because this appeal can no longer serve
the intended harm-preventing function, or, put another way,
this court, within the isthmian confines of an interlocutory
appeal from an order refusing to restrain a now completed
act, has no effective relief to offer.
Our analysis finds ample support in the case law.
It has been common ground throughout the last century that an
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appeal, although live when taken, may be rendered moot by
subsequent developments. See Mills v. Green, 159 U.S. 651,
653 (1895). More specifically, "an appeal from the denial of
a motion for a preliminary injunction is rendered moot when
the act sought to be enjoined has occurred." McLane v.
Mercedes-Benz of North Am., Inc., 3 F.3d 522, 524 (1st Cir.
1993); accord Bank of N.Y., 9 F.3d at 1067; Oakville Dev.
Corp. v. FDIC, 986 F.2d 611, 613 (1st Cir. 1993). Based on
these precedents, it appears that CMM's appeal is moot. See
Bank of N.Y., 9 F.3d at 1067 (explaining that an appeal from
the denial of a motion for preliminary injunction is moot if
the appellate court can no longer preserve, or feasibly
restore, the status quo); Oakville, 986 F.2d at 613 (holding
that a case is moot upon the inability of a court to provide
effective relief in respect to the claim before it).
We emphasize that appellant's suit remains pending
in the district court. Unlike this appeal, the suit itself
is not moot because the relief requested is attainable; if
appellant ultimately prevails, the district court can award
money damages, attorneys' fees, and other effective relief.
A suit that seeks damages for harm caused by past practices
is not rendered moot by the cessation of the challenged
conduct. See Curtis Indus., Inc. v. Livingston, 30 F.3d 96,
97-98 (8th Cir. 1994) (explaining that a judgment declaring
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an appeal of a ruling anent a preliminary injunction moot
does not preclude the district court from proceeding to hear
and determine a claim for damages arising out of the same
conduct); Trane Co. v. O'Connor Sec., 718 F.2d 26, 27 (2d
Cir. 1983) (dismissing appeal from denial of preliminary
injunction as moot "[e]ven though issues may remain for a
trial on the merits").
IV
IV
Appellant explores two avenues in its effort to
detour around the barrier of nonjusticiability. Both are
blind alleys.
First, appellant asseverates that the harm it has
experienced may simply be in a state of temporary remission.
It posits that WPOR, having run the allegedly infringing
contest once, may do so again, and, if it chooses its time
frame skillfully, may continue to dodge appellate review.
The asseveration cannot withstand scrutiny.
To be sure, the likely recurrence or repetition of
the wrong sought to be enjoined, when coupled with a
demonstrated tendency to elude review, forms the basis for a
recognized exception to the application of the mootness rule.
See Oakville, 986 F.2d at 615; see also Southern Pac.
Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) (holding that a
case is not moot if the alleged wrong is "capable of
repetition, yet evading review"). But, here, appellant's
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attempt to invoke this exception lacks at least one necessary
ingredient.5 It is not enough that a consummated event
could, theoretically, happen again. Rather, for an event to
be "capable of repetition" in the requisite sense, there must
be a reasonable expectation of reoccurrence. See United
States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985); Trane,
718 F.2d at 27.
This is not such a case. When questioned at oral
argument, appellees' counsel stated flatly that WPOR would
refrain from revivifying its contest until after the main
case which, as we have said, is awaiting trial in the
district court, see supra p.7 has been concluded. We
consider an express representation by an officer of the court
to be a solemn undertaking, binding on the client, cf., e.g.,
United States v. Coady, 809 F.2d 119, 121 (1st Cir. 1987)
(refusing to countenance a defendant's attempt to retreat
from his attorney's express representation), and we expect
that it will be honored. Given the stand-still
representation, the potential for reoccurrence or repetition
of the allegedly wrongful acts is far too exiguous to support
continued appellate jurisdiction.
Appellant's second attempted detour need not detain
us. CMM contends that the possibility of effective relief
5. We take no view of whether appellant's claim satisfies
the "evading review" prong of the exception.
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exists notwithstanding the end of WPOR's promotion. It
anchors this contention on the idea that the district court
could still enjoin WPOR pendente lite from reaping the
benefits of the increased listener database that it
presumably acquired through its exploitation of the PAYDAY
contest. There are several problems with this argument. We
need not go beyond its two most noticeable flaws. In the
first place, CMM never requested this specific relief during
the preliminary injunction proceedings in the district court.
Consequently, its argument founders. A party who neglects
to ask the trial court for relief that it might reasonably
have thought would be available is not entitled to importune
the court of appeals to grant that relief. See Dartmouth
Review v. Dartmouth Coll., 889 F.2d 13, 22 (1st Cir. 1989);
Beaulieu v. United States IRS, 865 F.2d 1351, 1352 (1st Cir.
1989); see generally Clauson v. Smith, 823 F.2d 660, 666 (1st
Cir. 1987) (holding that theories not developed in the
district court cannot be raised for the first time on appeal)
(collecting cases).
In all events, even were the point preserved, it
would be unavailing. If CMM prevails on the merits, WPOR's
increase in listenership conceivably may represent a form of
unjust enrichment, calling for damages in the nature of
disgorgement. But an entitlement to money damages, without
more, rarely constitutes an adequate basis for injunctive
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relief. In particular, the issuance of a preliminary
injunction requires a showing of irreparable harm to the
movant rather than to one or more third parties. In the
circumstances of this case, WPOR's use of a wrongfully
acquired database would not meet this benchmark. Such
conduct harms only other radio stations WPOR's competitors
not CMM itself.
V
V
We need go no further. Because the relief sought
below a more sweeping preliminary injunction cannot
feasibly be granted under the changed circumstances that now
obtain, this appeal no longer presents a live controversy.
The appeal is moot and, therefore, this court lacks
jurisdiction to reach the merits.6 Appellate tribunals are
not, and should not be, in the surreal business of rendering
advisory opinions.
Appeal dismissed. Costs in favor of appellees.
Appeal dismissed. Costs in favor of appellees.
6. We express no opinion either on the merits of the order
appealed from or on the issues that remain to be tried in the
lower court.
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