TCR Sports Broadcasting Holding, LLP v. Cable Audit Associates, Inc.

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 4, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TCR SPORTS BROADCASTING
HOLDING, LLP, d/b/a Mid-Atlantic
Sports Network,
Plaintiff - Appellant,
v. No. 16-1143
(D.C. No. 1:13-CV-01803-CMA-CBS)
CABLE AUDIT ASSOCIATES, INC., (D. Colo.)
d/b/a Media Audits International,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, PHILLIPS and McHUGH, Circuit Judges.
_________________________________
In this contract dispute, TCR Sports Broadcasting Holding, LLP, d/b/a
Mid-Atlantic Sports Network (MASN) appeals the entry of summary judgment in
favor of Cable Audit Associates, Inc., d/b/a Media Audits International (MAI), as
well as the orders denying MASN’s motion to alter or amend the judgment and
awarding costs to MAI. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
MASN is a regional sports network that provides programming—primarily
Major League Baseball games of the Baltimore Orioles and the Washington
Nationals teams and related content—to several distributors, who make the content
available to their subscribers. The distributors are contractually obligated to pay
MASN a monthly fee for each subscriber receiving the MASN service, which
consists of two channels, MASN1 and MASN2, due to the fact that the teams
sometimes play simultaneously. By contract, the distributors are required to provide
both channels as a package; they cannot provide one without the other.
MASN entered into a series of agreements with MAI to audit and verify the
monthly subscriber counts provided by the distributors. The agreements obligate
MAI “to carefully and accurately verify the number of Residential and Commercial
Subscribers receiving the MASN service” from each distributor. Aplt. App., Vol. 3
at 377. MASN compared MAI’s audit reports with the subscriber counts provided by
the distributors and then worked with the distributors to resolve any discrepancies. A
problem arose when MASN learned that some distributors were providing some
subscribers with access to MASN2 only, yet MAI’s audits were conducted by
counting solely subscribers receiving MASN1. MAI agreed to re-audit some of the
subscriber counts, but MASN was unsuccessful at collecting some of the subscriber
fees it believed it was entitled to receive from distributors who had breached their
obligation to provide both channels as a package. MASN then sued MAI for breach
2
of contract based on the theory that their audit reports were incomplete, causing
MASN to forego fees that it was entitled to receive.
MAI moved for summary judgment, arguing that it had fulfilled its obligations
under the audit agreements. The agreements required MAI to obtain counts for “the
MASN service.” Id. Although that term is not defined in the agreements, the parties
agree it consists of both channels. MAI concedes that it counted only subscribers
receiving MASN1, operating on the assumption that those counts would accurately
reflect the number of subscribers receiving the MASN service. Its audit reports were
based on those counts. Since distributors were contractually required to provide
access to both channels without offering them separately, MAI argued that it had no
reason to audit both channels. MASN argued that this method of auditing
undermined the purpose of the audit agreements to such a degree that MAI breached
the agreements since MASN expected to be paid whenever its content was
distributed.
The district court ruled in favor of MAI:
[A]t the time the parties signed the Audit Agreements, it was their intent
that [MAI] verify the subscribers receiving the MASN Service, which
consists of both MASN1 and MASN2. As such, [MAI] was not
contractually obligated to verify the subscribers who received only
MASN2 and [MAI] did not breach the contracts.
Aplt. App., Vol. 5 at 999. The district court denied MASN’s motion to alter or
amend the judgment and awarded MAI $21,534.91 in costs.
3
II. Analysis
MASN argues that the district court erred (1) by granting summary judgment
because material facts are in dispute as to the scope of MAI’s obligations under the
agreements and whether MAI fulfilled those obligations; (2) by applying the wrong
standard in analyzing the motion to alter or amend the judgment; and (3) by awarding
MAI costs associated with obtaining video depositions.
A. Summary Judgment
We review de novo a district court’s grant of summary judgment. Gol TV, Inc.
v. EchoStar Satellite Corp., 692 F.3d 1052, 1055 (10th Cir. 2012). “Summary
judgment is appropriate when ‘there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’” Larry Snyder & Co. v.
Miller, 648 F.3d 1156, 1159 (10th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
We also review de novo the interpretation of a contract. Cellport Sys., Inc. v.
Peiker Acustic GMBH & Co. KG, 762 F.3d 1016, 1022 (10th Cir. 2014). The parties
agree that Colorado law governs our interpretation of the audit agreements. Under
Colorado law, “a contract must be construed to ascertain and effectuate the intent of
the parties as determined primarily from the language of the contract.” E. Ridge of
Fort Collins, LLC v. Larimer & Weld Irrig. Co., 109 P.3d 969, 974 (Colo. 2005).
“To determine the intent of the parties, the court should give effect to the plain and
generally accepted meaning of the contractual language.” Copper Mountain, Inc. v.
Indus. Sys., Inc., 208 P.3d 692, 697 (Colo. 2009). “[A] contract is ambiguous if it is
fairly susceptible to more than one interpretation,” but “[m]ere disagreement” on how
4
to interpret a contract does not render it ambiguous. E. Ridge, 109 P.3d at 974
(internal quotation marks omitted).
The gist of MASN’s contract claim is that MAI breached the agreements by
not obtaining subscriber counts for MASN2. But no specific term in the agreements
imposes such a requirement. With one minor exception not relevant here, the
agreements do not even mention MASN2. Although MASN now takes the position
that the agreements’ purpose was to provide it with subscriber counts for each
channel, the plain language of the audit agreements does not compel such an
interpretation.
Due to the lack of an express provision in the agreements to support its
position, MASN argues that by failing to audit MASN2, MAI did not fulfill the
overall purpose of the agreements, which was to inform MASN when it was entitled
to additional fees from the distributors. We do not agree that MASN can paint MAI’s
obligations under the agreements with such a broad brush. In the absence of an
express requirement to count subscribers receiving each channel, MAI’s approach
was a valid means of assessing the number of subscribers receiving the MASN
service. Nor can MASN show that when the parties entered the agreements, they
intended for the channels to be counted separately. MASN admits that it did not
know some subscribers were receiving only MASN2 until years after it began
contracting with MAI. We decline to interpret the agreements to mean that MASN
intended for MAI to count a category of subscribers that neither party knew existed
when they entered into the agreements.
5
MASN also argues that MAI was required to audit subscribers receiving only
MASN2 to meet its obligation to report “MASN Level of carriage and channel
number for the MASN service.” Aplt. App., Vol. 3 at 372. But if the intent of the
parties were for MAI to audit more than one channel, the words “level” and
“number” would not be singular in this provision of the audit agreements. Moreover,
MAI produced audit reports for MASN for several years before MASN brought this
suit. Again, if the intent behind the agreements were for MAI to provide two sets of
numbers for carriage levels and channel numbers, this issue would have arisen
sooner.
We conclude that the district court did not err in interpreting the audit
agreements or by concluding that the undisputed facts show that MAI did not breach
its obligations.
B. Motion to Alter or Amend
MASN filed a motion to alter or amend the judgment under Fed. R. Civ.
P. 59(e). The district court found the motion to be untimely under that rule, and,
treating it as a motion brought under Fed. R. Civ. P. 60(b), denied it. MASN argues
that, analyzed under the proper standard for a Rule 59(e) motion, it should not have
been dismissed.
“We review a district court’s ruling on a Fed. R. Civ. P. 59(e) motion under an
abuse of discretion standard.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.
1997). Such a motion “should be granted only to correct manifest errors of law or to
present newly discovered evidence.” Id. (internal quotation marks omitted). In
6
support of its motion, MASN made substantially the same arguments that we rejected
in the previous section of this order and judgment. Therefore, we conclude that
MASN has not made the required showing of manifest error and that the district court
did not abuse its discretion in denying the motion. See Elkins v. Comfort, 392 F.3d
1159, 1162 (10th Cir. 2004) (“We have discretion to affirm on any ground adequately
supported by the record.”).
C. Costs
MASN argues that the district court erred by awarding MAI certain costs
associated with obtaining videotaped depositions. We review costs awards only for
an abuse of the court’s discretion. In re Williams Sec. Litig.—WCG Subclass,
558 F.3d 1144, 1148 (10th Cir. 2009).
“Fees for printed or electronically recorded transcripts necessarily obtained for
use in the case” may be taxed pursuant to 28 U.S.C. § 1920(2). We have held that
“section 1920(2) implicitly permits taxation of the costs of video depositions.” Tilton
v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1997). Moreover, “in
most cases, a stenographic transcript of a videotaped deposition will be ‘necessarily
obtained for use in the case.’” Id. at 1478 (quoting § 1920(2)). MASN contends that
obtaining videotaped depositions and transcripts was duplicative and unnecessary,
that the videotaped depositions had no independent use, and that they were not relied
on by the district court in granting summary judgment. We have previously rejected
such a narrow reading of the deposition expenses authorized under § 1920. See In re
Williams Sec. Litig., 558 F.3d at 1149. The district court found that the costs
7
associated with the depositions were reasonably necessary for the litigation, and we
discern no abuse of its discretion.
III. Conclusion
The judgment of the district court and the orders denying the motion to alter or
amend the judgment and awarding costs are affirmed. MASN’s unopposed motion
for leave to file documents under seal is granted.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
8