Professional Documents
Culture Documents
_________________________
No. 95-2335
Plaintiffs, Appellants,
v.
Defendants, Appellees.
_________________________
_________________________
Before
Circuit Judges.
______________
_________________________
with whom
Andrea J. Pollack,
__________________
Cornelius J.
_____________
with
Leonard F. Lesser,
___________________
were
on brief,
whom
and
Schneck Weltman
________________
for
appellees Viacom
_________________________
_________________________
SELYA,
SELYA,
appellant
Circuit Judge.
Circuit Judge.
______________
Donald M.
In
this
Berkovitz challenges
appeal,
plaintiff-
the district
court's
Office, Inc.
Although
(HBO)
we
applaud
management and
trial,
awry.
and Viacom
the
district
its Briarean
we believe
that in
Consequently, we
International,
court's
efforts to
one crucial
vacate
the
refine
Inc.
innovative
the issues
respect the
judgment
(Viacom).1
case
for
court went
and remand
for
further proceedings.
I.
I.
FACTUAL PREDICATE
FACTUAL PREDICATE
party
against
consistent
whom
with record
the
district
support.
court
See, e.g.,
___ ____
entered
judgment,
1989).
television channel.
He
round-the-clock
commercial
television
a cable
"The Entertainment
channel
highlighting
movies,
and other
staples.
The
concept embodied
interactive
____________________
1We
omit
particularized
necessarily
stand or
mentioned.
The
inactive
fall
omitted
reference
with parties
parties are
corporation controlled by
exercise of literary
to
two
whom
plaintiff
parties
we have
who
already
KDK, Inc.
(an
Notwithstanding
is binding upon
In February 1985,
plan
offer.
to an HBO vice
He then
of the TEN
Berkovitz
attempted to
HBO retained
interest Viacom
a copy).
in the
In July
TEN plan.
He claims to
submission
to
have done
so (on
the express
the
He also claims
at Viacom's request
The
Viacom.
condition that
1987,
and to have
the
During the
fall of
1987 he
who,
Berkovitz
keep its
contents in confidence,
Despite
these
and led
him to believe
new enterprise
encomia,
and
several
that HBO
would
fruits with
him.
subsequent
telephone
____________________
2Not
surprisingly,
testified during
the
Carlson
a deposition that
disputes
he found both
focus; hence, he
any commitments.
this
account.
He
Berkovitz and
HBO
1989.
inaugurated "The
Viacom
Network."
Central."
Comedy Channel"
shortly followed
Late
in
Berkovitz
inspiration from
1990
the
suit
two
with
merged
in November
"Ha!
to
The
become
of
Comedy
"Comedy
in blatant
II.
II.
The
procedural
decretory significance.
A.
A.
Invoking
Berkovitz filed
aspects
of
this
litigation
are
of
Initial Proceedings.
Initial Proceedings.
___________________
diversity
jurisdiction,
suit in federal
28
district court
U.S.C.
on January
1332,
28,
1991.
Judge Skinner
drew the
case.
In
the
complaint, the
plaintiff alleged that HBO and Viacom pirated his concept without
compensating him,
unjustly enriched
TEN
plan
to
practices.
productive
ends,
themselves at
to pay him
and
his expense,
if they used
committed
unfair
the
trade
elements
contention.
of his idea in
the
case.
Massachusetts
became
protuberant
and its
constituent
soon
bone
of
order to recover
Berkovitz, positing
governed, attempted
that
of
the
substantive
law of
to parry
this thrust
on two
levels:
that
contravention
of
an
implied-in-fact contract
need
not
prove
In time,
Judge
the
Skinner considered
defendants moved
the
for summary
parties' arguments
and
judgment.
reserved
decision.
In a rescript
Massachusetts
law
Massachusetts
does not
supplies
plaintiff alleges
the
require a
the existence
rule
1994, he held
of
showing
of a
decision,
(1) that
(2)
of novelty
when the
contractual relationship,
therefore
that
should
B.
B.
case
in
mid-1994.
reconsideration
of
Although
the earlier
the
denial
defendants
moved
for
of
brevis disposition,
______
He instead convened
matters
which
to a
head.
During
the last
transpired at
four conferences
(all of
to be tried.
Because the
events that
light on this
1.
1.
conferences
focused
primarily
on
the
The first
parties'
of the four
agreement
to
bifurcate
the
damages.
trial, separating
But Judge
Keeton
the
also
issues
seized this
forensic jargon),
and directed
of liability
them to
opportunity
and
to
theories (avoiding
develop a verdict
form
2.
2.
At
the
led
Judge Keeton
that "we're
to remark
going to
The debate
have to
get
particularization would
assist
in "structuring
the claims
and
defenses
so
understand
that
can
them, [and]
understand
so that
them,
so
[the litigants]
the
jury
can
can understand
each other."
3.
3.
fuzzy claim"
to me
additional
sought
to consider "a
lawyer to "communicat[e]
After some
leave
to
file
plaintiff's counsel
fresh
motions
for
summary
judgment),
He pledged that
____________________
several elements:
"one is,
did Mr.
it? . . .
it to
Four is,
pay for it if
. .
And
did
then if [the
jurors] answer all of those correctly, I would say under that one
theory of the case, then you go to damages . . . ."
he
would prove
each of
plan, and
(1) an implied
the defendants
(2)
the
agreement between
for confidential
defendants'
Berkovitz and
disclosure of
appropriation of
the
the TEN
plan
in
derogation
of this agreement.
plan
were novel
addition,
the
elements of
and
court
which were
used
asked
plaintiff to
the
by the
defendants.
list
the
the
In
legal
and plaintiff's
4.
4.
abandonment
of any of the
elements contained in
maintained
elements
that
of his
the
plaintiff
still
remaining implied
the
had
not
specified
contract claim.4
the
The court
his cause of
action
with
particularity.
Noting
that
Berkovitz's
proposed
jury
that HBO
the court
More
dissatisfied;
discussion
he reminded
ensued,
but
the
Berkovitz's counsel
judge
remained
that he
had the
____________________
like import as a
only plaintiff's
fiduciary duty.
Both claims
have a common
denominator:
they
the
case
because
particularization
summary judgment on
Berkovitz
orders.
had
The
failed
to
defendants
he might dismiss
comply
moved
The court
the
with
the
orally
for
of the TEN
expressed no interest
In a last-ditch effort
the
what he
case.
The
lawyer delineated
termed Berkovitz's
the TEN
would
of some part
a reasonable
(or either of
of that
person
be entitled
to
as postulating
differentiate
not single
an
"all factors"
approach
out which
elements
After
entered
in which
work product.
relief.
an interlocutory
because it
the plaintiff
did
not
(e.g., it did
claimed had
been
as a matter of law,"
judgment for
the defendants
the court
but gave
5.
5.
judgment
either
as
Berkovitz
who
sanction
for
failure
adequately
to
particularize
his claim
or because it
found the
"all factors"
See
The court
Berkovitz v.
___
_________
In this
order the court clarified the basis on which the judgment rested;
at
*5.
Consequently,
substantive grounds.
III.
III.
the
court
terminated
the
See id.
___ ___
case
on
First,
we
DISCUSSION
DISCUSSION
Our
analysis
proceeds
court's final
in
three steps.
why we
we delineate the
Next,
A.
A.
deem
_______________________________________________
series of
issues
pretrial conferences
and ascertaining
consumption.
devoted largely to
which issues
Federal district
their crafting of
were fit
985
for the
F.2d 1438,
refining the
jury's
discretion in
e.g., Cleveland v.
____ _________
1450 (10th
Cir.), cert.
_____
denied, 114 S. Ct. 291 (1993); Jensen v. Frank, 912 F.2d 517, 524
______
______
_____
In a
related vein, courts may use case management tools to advance the
the
claims rest."
Rodriguez
_________
on which those
F.3d 1168,
In
powers and
only
this instance,
succeeded in
the court
made adroit
use
of its
claims until
possibilities that
may
predicate.
court
[the
possibilities.
stated that
"all
factors"
it had
As to legal
insufficiency, the
"[a]ssum[ed], without
approach
upon
which
Though the
in various respects
loosely
court criticized
the defendants'
deciding, that
Berkovitz's
implied
law
in Massachusetts."
Berkovitz,
_________
supra, at
_____
*5.
As to
the
This
insufficiency.
is
leaves
the
third
strengthened by the
possibility:
evidentiary
order.
10
The court
which a
supporting . . .
. . . that in
of the parties."
Id. at
___
*5.
Along the
not reasonably
contractual
or fiduciary
Consequently,
duty
Berkovitz's
existed
implied
will not
paint the
this
contract
We
in
case."
claim
did
Id.
___
not
Id. at *9.
___
lily.
Since "the
district
Corp. v.
_____
Isla Rica Sales, Inc., 747 F.2d 21, 26 (1st Cir. 1984),
_____________________
in
read,
discounts
the other
possibilities
and
disposes of
of evidence.
court's
the
lack
than as a
dismissal for
or want
of
B.
B.
power to
477 U.S. 317, 326 (1986); Stella v. Tewksbury, 4 F.3d 53, 55 (1st
______
_________
1560
(1st
complement
Cir.
1989).
the courts'
Properly
deployed,
case management
that
authority.
power
can
After all,
11
simplification
of
the
issues,
including
Fed. R. Civ.
this
promote
process
is designed
to
the
elimination
P. 16(c)(1).
efficiency and
of
Since
conserve
judicial resources, see In re Two Appeals, 994 F.2d 956, 965 (1st
___ _________________
Cir.
1993),
"[t]here
is
no
reason
summary judgment."
note to
pretrial
dispute
to
require
that
[the
Autobody, 43 F.3d
________
to
conference
discloses that
no
1994).
Thus,
material
when "the
facts are
in
judgment
as a
matter of
law,"
Shareholders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985),
_____________________________
the
court may
dispose of
See
___
the entire
case by
granting summary
F.2d
1427, 1432 (11th Cir. 1992); Portsmouth Square, 770 F.2d at 869.
_________________
on
unbesought
To
summary
an adequate opportunity
judgments.
First,
district
court
____________________
5A district
sua
court also
F.2d 529,
530
(8th Cir.
summary judgment
of the parties'
1993);
v. Parker,
______
Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir. 1987).
______________________
12
v.
when
discovery is
enjoyed
See
___
sufficiently advanced
a reasonable
Stella, 4 F.3d
______
opportunity to
at 55;
that the
glean the
Jardines Bacata,
_______________
parties have
material facts.
878 F.2d
at 1561.
only if
defense.
878 F.2d at 1561 ("`Notice' in this context means that the losing
party .
. .
received a
fair opportunity to
put its
best foot
forward.").
all
motions for
summary judgment.
See
___
Stella, 4
______
F.3d
at 56
(noting that "it is well settled in this circuit that all summary
judgment proceedings,
judge,
to the
will be
held
district
court's power
to
of
Rule 56").
standards
the district
enunciated in
F.2d at 1513
order summary
Rule
56
(explaining that
the
judgment
own
on its
This means, of
course, that a
which to
proffer
specific concerns.
Appellate
review
spontaneous
nature of
other grant
of summary
is
equally
the trial
unaffected
court's action.
As
of appeals
by
the
with any
affords
13
plenary
review
to
decision
granting
sua
sponte
summary
judgment,
in the light
most hospitable to
C.
C.
Having
scoured the
record, we
appeal.
district court
failed to give the plaintiff adequate notice of the basis for the
When
a court
We explain briefly.
charts a
bearings mid-course
the parties.
therefore, the
procedural route,
on it.
A court cannot
lawyers and
alter its
impending change
to
46
F.3d
138,
148-49
principle is
own
Here,
to
use
the progress
(applying
Cir.
1995)
this
innovative
of a
for counsel
sua
orders
in
an
the elements of
[his] legal
effort
4 F.3d
sponte summary
the rule,
the judgment
to
at 55-56
judgment).
see Berkovitz,
___ _________
to proffer
this
opposing
as requiring
that
elect on their
of-claim
methods
obviously understood
relevant and
out
case"); Stella,
______
principle to
the judge
opportunity
(pointing
initiative
accelerate
(1st
Berkovitz "to
all
thought that
particularity-
proffer admissible
theory"); id. at
___
*5 (stating
that
14
Berkovitz
evidence
was "given
an opportunity
to proffer
Yet the
any additional
One part
of-claim
orders.
The
writing,
but
delivered
court did
them
not
ora
to the particularity-
reduce those
sponte
at
the
orders
to
pretrial
___
conferences
that
we
have
conferences
transcripts
now
have
been
______
chronicled.
Nonetheless,
presence of a
prepared.6
the
Whatever
the
court's
appears to have
district court
sufficient forewarning.
the
1) conference
penultimate
adverse judgment,
(June
At
the last
it
insufficiency but to
comply with
that
the plaintiff's
(July
18)
enter an
not to evidentiary
failure satisfactorily
conference
might
the court
See id.
___ ___
reinforced
to
at *3.
this
linkage by discussing
tandem
with
articulate
approach.
its
comments
avenues
See,
___
its entry of an
on
of legal
e.g., id.
____ ___
the
relief
In its
interlocutory judgment in
plaintiff's
beyond
inability
the "all
to
factors"
____________________
record,
(November 21,
the court
convened at
least one
no transcript has
are unilluminating.
15
other conference
been supplied.
this conference
court veered in
claim
a different
predicated on
direction.
the "all
It
explained that
factors" approach
would not
the
fly
duty
[of
confidentiality]
negotiations of the
Prior to
making
arose
parties."
this ruling,
at
Id. at
___
the
some
supporting such a
point
during
*5 (emphasis
court had
neither
the
supplied).
informed
respect to the
of an
implied contract.7
To
the contrary,
opposite
the court's
direction.
We cite
two
examples.
of his
him,
stating:
At
the
to embellish the
claim.
to talk
The
in the
June 1
elements
court interrupted
about the
proof at this
point.
second
example is
declaration
on
drawn from
this occasion
"incorrect as a
matter of law"
the July
that
the
18 semble;
The
the court's
plaintiff's claim
was
proffer of
____________________
7We note
that all
parties initially
seem to have
assumed
that the trial court did not premise the sua sponte judgment on a
dearth of
makes
the
evidence.
The plaintiff's
manifest Berkovitz's
case either
as
a sanction
or
court defenestrated
because the
"all
factors"
approach
failed as
a matter
of law.
By
the same
token, the
judgment
deficiencies
on
the
related to
ground
that
there
the plaintiff's
proof
were
evidentiary
of one
or more
contractual relationships.
16
Similarly, the
the
record
to
approach.
plaintiff
defeat
summary judgment
a meaningful
supporting his
on
the
is whether the
opportunity
to cull
"all factors"
the best
evidence
summary judgment.
the opportunity
Nor
apparent
court
See Stella, 4
___ ______
if one existed
are
we comfortable
miscommunication to the
On this
Nazaro,
______
shifting
plaintiff.
the
blame for
To be
the
sure, this
advantage
district
court's
attention
by
way
of
timeous
motion
to
reconsider.
____________________
8There
to
evidence
in connection
motions.
First,
insufficiency
the
of such
with
the defendants'
defendants forswore
evidence when
changed
any reliance
they filed
56
on the
those motions.
implied contracts,
original Rule
the existence of
one or more
dramatically,
and Judge
of the
Keeton
case
explicitly
Skinner's order.
See
___
Berkovitz, supra, at
_________ _____
*3.
Finally,
motions)
also
assumed
the
contractual relationship.
17
existence
of
the
requisite
___ n.9 (1st Cir. 1996) [No.95-2342, slip op. at 19 n.9]; Grenier
_______
(1st Cir.
1995);
VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 4-5 (1st
_________
______________________________
Cir.
1993).
But
here,
the
plaintiff
filed
motion
reconsider,
grounds that
time.
was
until
the
district
court ruled
on
the
motion that
the
spotlight
suddenly
swung
to
It
reconsideration
not
evidentiary insufficiency.
might
have filed
a second
______
While the
motion for
were apparent
to
plaintiff
at the
theoretically
reconsideration at
that
time,
the appeal
period
reluctant to fault a
ask
trial
decision.
was
running;
and, moreover,
court more
Discretion,
than
once
after all,
to
reconsider an
is often the
we
are
not to
adverse
better part
of
valor.
We need
go no further.
It may be that,
in the final
make the
attempt.
but he
is entitled to
court's sua
opinion.
opinion.
_______
18