USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 96-2066

PLAY TIME, INC.,

Appellee,

v.

LDDS METROMEDIA COMMUNICATIONS, INC.,

a/k/a WORLDCOM, INC. OR WORLDCOM,

Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr, Senior Circuit Judge,

____________________

and Stahl, Circuit Judge.

_____________

____________________

Joan A. Lukey,
_____________

with whom Anthony A. Scibelli and

___________________

LLP were on brief for appellant.

___

Hale and Do
___________

Kenneth L. Kimmell,
___________________

with whom

Erin M. O'Toole and

________________

Cushner & Kimmell, P.C. were on brief for appellee.

_______________________

____________________

August 12, 1997

____________________

Bernste
_______

CYR,
CYR,

Senior Circuit
Judge.
Senior Circuit
Judge
_______________________

WorldCom challenges

a district

for breach

of its

Time, Inc.

("Play Time")

Defendant-appellant

court judgment

agreement to

awarding damages

assign plaintiff-appellee

a toll-free "800"

Play

vanity number.

We

affirm the district court judgment in all respects.

I
I

BACKGROUND1
BACKGROUND
__________

WorldCom,

business

in Jackson,

Massachusetts,

corporation

Mississippi,

provides

with its principal

and

subscribers

an

with

distance services, including toll-free "800"

to industry standards,

office

place of

in

Revere,

specialized

numbers.2

toll-free "800" numbers

long-

Pursuant

are stored in

central

database

("SMS/800").

known

All "800"

as the

800

Service

numbers are

subscribers by so-called Responsible

reserved

Management System

and assigned

to

Organizations ("RESP ORGs")

through SMS/800.

In

family-owned

March

1994,

Play

corporation

Time,

engaged in

Massachusetts-based,

selling art

supplies, was

endeavoring to expand into nationwide telephonic networking aimed

at the commercial real estate leasing market.

Play Time

shareholder and

referral service through

co-manager,

Michael Levosky, a

envisioned a

nationwide

which potential customers could

call a

____________________

1"We recite the

have found them."

facts as the jury and

Roche v.
_____

821 (1st Cir. 1997).

district court could

Royal Bank of Canada, 109 F.3d

____________________

820,

2At the time of the

relevant events, its corporate name was

LDDS Metromedia Communications, Inc.

toll-free

"800" number and

call router which

enter information into

would link the caller to a

an automated

real estate office

near the place the caller wanted to lease commercial real estate.

Play Time would generate income from the fees charged real estate

brokers for

their advertising and

usage of the

toll-free "800"

number.

To that

vanity

number,

business message

customers.

Number"),

advised

end, Play

one

whose alphabetical

readily identified

Levosky

which

Time set out

decided

would

Levosky that

to

to obtain

a suitable

counterpart

conveyed a

and remembered

by targeted

obtain 1-800-"367-5327"

transpose

the Number,

("the

as "FOR-LEAS[E]."

WorldCom

though not

use, was

then in

expected to become available a few weeks later, on or about April

20, 1994.3

Levosky

called

Massachusetts, which

the

WorldCom

handled other

office

telephone business

Time, and

spoke with the

"800" coordinator, Martha

confirmed

that the Number

would become available

Burton assured Levosky

in

that she would obtain

Revere,

for Play

Burton, who

in mid-April.

the Number through

____________________

3The SMS/800 system records the status of all "800" numbers.

Normally, "800"

numbers fall into

"assigned," "working,"
After a subscriber

"spare," "disconnect,"

advises that it no longer

"800" number, the number is

months
"spare"

one of five

before reverting

to

main categories:

or "unavailable."

needs a particular

allowed to age for approximately six

"spare" status.

Only numbers

in

status are immediately available to the next subscriber.

A number in "spare" status is not assigned to any particular RESP

ORG, but
by

can be assigned to a subscriber

reserving it

with SMS/800.

Once an

by any RESP ORG simply

"800" number

has been

assigned to a particular RESP ORG, however, no other RESP ORG can

control its status.

SMS/800

and assign

it to

Play

Time once

it attained

"spare"

status.

On

April 20, 1994, one

week after WorldCom became the

RESP ORG for the Number, and the day

the Number was to revert to

"spare" status, Levosky reminded WorldCom to assign the Number to

Play

Time.4

Notwithstanding

that WorldCom had

been designated

the RESP ORG for the Number, however, it did not do so.

called WorldCom frequently between April

ascertain

Levosky

20 and May 10, 1994, to

why the Number had not yet been assigned to Play Time,

only to be told essentially that WorldCom was checking into it.

On

May

11,

1994, Levosky

called

Joseph

Shannon, a

senior account executive in WorldCom's Revere office, who assured

Levosky that the

Number could be assigned to Play

appropriate paperwork

had

been

completed.

executed the required documents and returned

same day; Shannon faxed

Time once the

Levosky

promptly

them to Shannon the

them to the WorldCom RESP ORG

office in

San Antonio on May 12.

Although

printed a

the WorldCom fax machine in the Revere office

receipt reflecting that

the fax had been

received in

San Antonio on May 12, when Shannon called the San Antonio office

on

May 13

received.

he was

informed that

Once again Shannon

the documents

had never

faxed the documents.

been

Although the

____________________

4Any

RESP

ORG

may

directly through SMS/800.

RESP ORG, in
appeal,

reserve
The

"reserve" status.

a number

could remain

a number

in

"spare"

status

number is then "reported to" that

At all times

relevant to

in reserve status

for up

this

to 60

days.

Thereafter, it

automatically reverted to

"spare" status

unless it had achieved "assigned" or "working" status.

second set of documents was received in San Antonio on May 13, as

confirmed by telephone, still the Number was not assigned to Play

Time.

Shannon was

getting

the

told

the delay

Number released

fact that WorldCom

was

from SMS/800,

due to

difficulty in

notwithstanding the

was already the RESP ORG for the Number.

But
___

see supra note 3.

___ _____

Meanwhile,

office

in Indiana

business.

to

obtain

Eisemann intended to

referral system

20, 1994,

one Michael

similar to that

Eisemann had asked

the Number

for

a WorldCom

his real

use the Number in

a nationwide

envisioned by Levosky.

approximately two months

after Levosky

estate

On May

first made

verbal request for the Number and nine days after Levosky's first

written request,

office

Eisemann submitted

in Indiana,

with

the

the order

required

to the

paperwork.

WorldCom

Levosky's

earlier requests notwithstanding, WorldCom assigned the Number to

Eisemann, because its Revere office had never entered Play Time's

request into SMS/800.

Unaware that Eisemann had obtained

the Number, Levosky

continued to inquire into its

there

had been

advised him

would soon

the

some

status.

delay due

that the problems

to paperwork

determine whether

office.

The

call

was answered

Detroit,

Michigan,

maintenance

contacted WorldCom,

only to

problems, Shannon

had been resolved and

be assigned to Play Time.

Number to

Although Levosky was told

On May 26, Levosky dialed

it would

ring at

Play Time's

instead by

an

office.

Whereupon

be informed that

the Number

employee in

there had

Levosky

been a

computer "glitch."

Although WorldCom switched

May

27,

by May

31 it

maintenance office.

Eisemann four

remaining with

was

the Number to Play

once again

ringing at

Time on

the Detroit

The Number changed hands between Levosky and

more times between

Eisemann.

May 31 and June

On June 2,

2, ultimately

Shannon tracked

down the

Indiana sales representative responsible for assigning the Number

to Eisemann, and learned for the first time that Eisemann too had

requested the

problem,

Number.

Levosky

complained

retrieved the Number

months earlier.

After

Shannon informed

that

WorldCom

from SMS/800 at his request,

Levosky then asked

Levosky of

the

originally

had

more than two

WorldCom to disconnect

the

Number pending an investigation.

Shannon and

his supervisor,

Charles Hurd,

senior WorldCom management in the Revere

Number be

returned to Play

Vice President of

Time.

the

Number could be

answer the

office, urging that the

Hurd informed

sales for the eastern region,

had been taken from Play Time.

question.

Brady Buckley,

that the Number

Buckley asked Hurd how much money

expected to

Buckley

approached

produce.

Hurd was

finally told Hurd:

unable to

"F--- it[;]"

"leave it alone."

Upon

unwilling

to

learning that

assist

him

the Revere

further,

office

Levosky

was unable

contacted

Deborah

Surrette, WorldCom Vice President for the Northeast region.

Levosky explained why

the Number was so important

or

When

to Play Time,

Surrette promised to investigate the

matter and get back to him.

Surrette asked

Kelle Reeves,

and

to

RESP ORG,

followed in

people,

but

office

or to

director of customer

determine whether

regard to the

without

Number.

WorldCom

policy had

After speaking

attempting either

ascertain which

provisioning

to

with several

contact

customer had first

been

the Revere

requested the
_________

Number, Reeves simply

industry

concluded that WorldCom had

complied with

guidelines requiring "800" numbers to be allocated on a

"first-come, first-served"

basis, as Eisemann's request had been

the first to be entered into SMS/800.5

Levosky continued to urge WorldCom to return the Number

to Play

Time, but was

its reassignment.

maintained

Number.

See
___

that Play

WorldCom

relationship

with

told that industry

supra note
_____

Time had

then

altered

Levosky

was

been

5.

Levosky

the first

course,

not
___

guidelines prohibited

nevertheless

to request

explaining

controlled

by

that

the

its

industry

guidelines, which govern only the relationship between a RESP ORG

and SMS/800.

At that point, WorldCom wrongly

represented to Levosky

that the problem had been caused by AT&T.

AT&T had

requested

According to WorldCom,

been the RESP ORG for the Number

it,

but had

released

on the date Play Time

the Number

to

"spare" status

rather than assigning it to

WorldCom.

To the contrary, however,

AT&T was never the RESP ORG

for the Number after 1993.

Rather,

____________________

5Industry guidelines
requests

are honored

first-served
initiated by a

basis, at

provide

based on
the

that:

"Specific

availability,

time

the

RESP ORG into SMS/800."

on a

reservation

800

Number

first-come,
request

Industry Guidelines for

800 Number Administration, 2.3.1 (Issue 3.0, December 1, 1993)

is

as we

have noted, WorldCom

itself had been the

designated RESP

ORG since April 13, 1994.

Finally, WorldCom informed

Levosky that the

he had submitted

through Shannon, see supra

___ _____

received

San Antonio

by its

request from Eisemann,

office

even though

p. 4, had

until after

a WorldCom

documents

not been

the May

employee in

20th

San

Antonio had confirmed receipt of the Levosky paperwork on May 13.

Play

Time brought

demanding

damages

Eisemann

was named

specific performance

suit against

and

WorldCom on

specific

performance.

an indispensable

claim

party in

because he

November 9,

1994,

Shortly

after

relation to

the

still controlled

the

Number

he

changed long-distance carriers to

prevent WorldCom

from returning the Number to Play Time.

Play Time

then offered

Eisemann

an immediate

$5,000

non-refundable deposit and an additional $45,000 following trial,

in

return for

dismiss its

value of

$10,000

the Number.

At the

action against Eisemann

the Number.

Eisemann

it

offered to

if he would testify

countered with

non-refundable deposit and

negotiations

same time,

to the

a demand for

$40,000 after trial.

Their

ultimately fell through because Play Time could not

come up with the additional $5,000 non-refundable deposit.

Eisemann

nevertheless

testified

at

trial

that

the

Number did have inherent value, explaining that "people would buy

the [vanity]

number for [its]

pamphlet he had

potential value."

He

developed for marketing the Number,

produced a

touting the

importance of

vanity

numbers in

reaching potential

customers.

Although Eisemann

acknowledged that

into an agreement

with Levosky in part because he

Levosky "out of

his hair," he

he was

motivated to

enter

wanted to get

consistently maintained that

the

Number had inherent value.

The jury returned verdicts for Play Time on all counts,

awarding $50,000 in damages on each count, representing the value

of

the

Number under

standard.

because

The

the jury

total

"willing-transferor-willing-transferee"

award was

limited

to $50,000,

however,

under more

than one

determined that recovery

count would be redundant.

At

a later

hearing, the

presiding

judge found

WorldCom had violated Mass. Gen. Laws ch. 93A,

civil

relief from unfair

court

determined WorldCom's

and

held

that

it had

within Massachusetts.

11, which affords

or deceptive business

conduct both unfair

occurred

"primarily

that

practices.

The

and deceptive,

and substantially"

Accordingly, the court trebled the $50,000

damages award made by the jury, see Mass. Gen. Laws ch. 93A,
___

11

(1984), and awarded attorney fees and costs under Mass. Gen. Laws

ch.

93A

and

the

Federal Communications

equitable claim for

Act.

Finally,

specific performance was dismissed

the

as moot.

WorldCom promptly appealed from the $233,334.84 judgment.

II
II

DISCUSSION
DISCUSSION
__________

1.
1.

Jury Instructions and Verdict Form

Jury Instructions and Verdict Form
__________________________________

WorldCom claims the district court erred in instructing

the

jury

to

apply

"willing-transferor-willing-transferee"

standard for measuring damages.

are without

violate

inherent value as

It maintains that "800" numbers

a matter

of law, since

it would

industry guidelines and public policy to allow telephone

numbers to be bought and sold on the open market.

Throughout the trial, Play Time made it very clear that

it was demanding the value of the Number.

court set

itself

to the

measure of damages.

court's proposed

task

Early on, the district

of articulating

an

appropriate

WorldCom voiced no objection to the district

articulation of

after the close of the evidence.

the measure

of damages

until

At that time, its trial counsel

offered two cursory observations.

First, WorldCom stated

the

negligence

claim

contract claim.

should

that the measure of

be

different

from that

on

the

Its second observation appears in the following

exchange:

WorldCom:
________
haven't
_______

Your Honor, just for the record, I

____ _____
___ ___ ______ _
made
____

any comments
___ ________

assignor-willing-assignee
_________________________
wanted

to

reflect what

on
__

the willing___ ________

theory.
______
the

reflects, that by not making

record so

just
far

any comments on

it, I don't adopt it as --

The Court:
_________

Well, you'll have the opportunity

to make objection.

WorldCom:
________

The Court:
_________
way

damages on

Yes.

But if you've got any alternative

___ __ ______ ___ ___ ___________

of dealing with this matter, of course I

___

__ _______ ____ ____ ______

want to hear it now.

____ __ ____ __ ___

WorldCom:
________

Right.

than simply to
____
__
in accordance
__ __________
on

I don't think I
_ _____ _____ _

do other
__ _____

ask you to instruct

___ ___ __ ________

the jury

with my
____ __

damages, and

requested instruction
_________ ___________

I expect

simply do after closings.

that's

what I'll

(Emphasis added.)

10

The record on

appeal neither contains a

proposed instruction by

WorldCom nor

reflects

the

grounds

for its

objection

to

the

instruction given by the district court.

The

issues

special verdict form

relating

to

included a statement

the "willing-transferor-willing-transferee"

standard, as follows:

1(c).

What

amount of money, if any,

do you

find to be fair

and reasonable compensation,

of each

following types,

of the

breach . . . of contract?

for .

. .

Answer in DOLLARS

or NONE.

(1)

Reimbursement

preponderance of

of

losses

the evidence

proved by

to have

been

valued by

the

out-of-pocket expenses.

(2)

Fair

market value

(as

willing-transferor-willing-transferee
dard)

of a

Time,

on or

transfer,
about

by Eisemann

September

stanto

21, 1995,

Eisemann's rights to use the number

5327.

of the

Play
of

800-367-

The

same formula

was

used for

the

contract, negligence,

and

Federal Communications Act claims.

The presiding judge

explained the "willing-transferor-

willing-transferee" standard to the jury as follows:

The

willing

transferor

and

willing

transferee are

hypothetical persons

by the

help us

law to

decide questions

valuation in circumstances
persons have arrived
the

property or

You, as

created

in which no

at an

property

decisionmakers on

real

exact value
rights at

of

for

issue.

this question

of

value, are directed to envision not the usual

arm's-length

transactions between

bargainers, but instead a

hypothetical variety
to fact variety.
human experience a
like
been

transaction of the

- indeed of

a contrary

If the reality is

that in

property interest exactly

that transferred in
transferred

real-life

in

11

this case
an

has not

arm's-length

transaction
imagine a

between

real people,

transaction not

transaction described in

you

must

exactly like

any

the evidence before

you.

These hypothetical persons,

transferor

and

willing

come to an

agreement.

negotiations in failure.

the willing

transferee,
They never

always

end their

They always

arrive

at a value they both agree upon.

The

aim of

factfinding

by using

this

willing-transferor-willing-transferee
standard is to help you evaluate the parties'
evidence, and their

arguments about evidence

and

about formulas

and

figures, and

about

other factors in evidence

that bear upon the

issue

are

of

value.

evaluation in
transferor

You

the way

and

to

you find

willing

do

your

the willing

transferee

would

evaluate the same factors and arguments.

To

these

suggested

by

binding.

They

transferor

and

persons

different

opposing

parties

are only tools.

willing

they
the

are

do

They are not experts,

end they make

not

They weigh every

are attentive to expert advice.

enables

not

The willing

transferee

overlook relevant evidence.

relevant factor.

formulas

but

But in

a pragmatic decision that

them to come to a common value after

evaluating all of the

evidence and arguments

before them.

After the jury charge had been delivered, the presiding

judge invited

form.

the

objections to the

charge and the

special verdict

At that point, WorldCom simply registered its objection to

"instruction

on the

measure

of damages"

relating

to the

"willing-transferor-willing-transferee" standard.

The

district

court overruled the objection.

Objections to jury instructions are governed by Fed. R.

Civ. P. 51, which provides in relevant part that "[n]o

assign as error

party may

the giving or the failure to give an instruction

12

unless

that party

objects thereto

before the

jury retires

to

consider its verdict,

stating distinctly the matter

_______ __________ ___ ______

and the grounds of the objection."

___ ___ _______ __ ___ _________

added).

We

Fed. R. Civ. P. 51 (emphasis

have "consistently held that the

51 must be followed

Inst. of Tech.,
______________

without deviation."

877 F.2d 1106, 1109

objected to
________ __

strictures of Rule

Smith v.
_____

Massachusetts
_____________

(1st Cir. 1989).

See also
___ ____

Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205,

___________
________________________

1213 (1st

Cir. 1995).6

Assignments of error duly preserved pursuant to Rule 51

__

are subject

to the "harmless error"

which requires
________

the reviewing court

defect in the

proceeding which does

rights of

the parties."

Fed. R.

regime set out in

to "disregard

not affect the

Civ. P.

61.7

Rule 61,
__

any error

or

substantial

Absent strict

compliance with

Rule 51, however, appellate challenges to a jury

charge or verdict form

"caused

miscarriage

cannot succeed unless the

of

justice

integrity of the judicial process."

or .

assigned error

undermined

the

Scarfo v. Cabletron Systems,

______
__________________

____________________

6The Rule

51 standard

special verdict form.

107 F.3d 925,

See
___

applies to the

jury charge

and any

Transamerica Premier Ins.Co. v. Ober,

____________________________
____

933 (1st Cir.

1997); Clausen v.
_______

Sea-3, Inc.,
___________

21

F.3d 1181, 1195-96 (1st Cir. 1994).

7WorldCom insists that the jury instruction must be reviewed

de
__

novo.
____

Although

evaluating the

we

exercise

legal correctness

instructions," Data General

____________
1147, 1159

(1st Cir. 1994),

form for abuse of discretion,

v. Ober, 107
____
complied with

F.3d 925, 933

"independent

of the

judgment

district court's

v. Grumman Systems Support,

_______________________
and may review the
see
___

jury

36 F.3d

special verdict

Transamerica Premier Ins. Co.

_____________________________

(1st Cir. 1997),

Rule 51 nonetheless

in

must show

a party which
that the

has

assigned

error

affected "substantial

whereas

party

which

has

rights," see
___

Fed.

not complied

demonstrate a "miscarriage of justice."

R. Civ.

with

Rule

P. 61,
51

must

See Scarfo v. Cabletron

___ ______
_________

Systems, Inc., 54 F.3d 931, 940 (1st cir. 1995).

_____________

13

Inc., 54
____

F.3d 931, 940 (1st Cir. 1995);

943 F.2d 147,

erroneous

jury

see also Lash v. Cutts,

___ ____ ____
_____

152 (1st Cir. 1991) ("Absent

instruction warrants

timely objection, an

new trial

only

in the

exceptional case where the error seriously affected the fairness,

integrity

or

public

(internal quotation

173,

reputation

of

marks omitted));

176 (1st Cir. 1987).

The

judicial

Elwood v.
______

proceedings."

Pina, 815
____

latter standard

"plain error"

see Transamerica Premier Ins. Co. v. Ober, 107 F.3d 925,

___ ______________________________
____

(1st Cir. 1997); Kerr-Selgas, 69

___________

964 F.2d

1255, 1259 (1st

"'is near its

Inc.,
____

21 F.3d

933

F.3d at 1213; Elgabri v. Lekas,

_______
_____

Cir. 1992);

Elwood, 815 F.2d

______

zenith in the Rule 51 milieu.'"

1181, 1196

F.2d

(1st Cir.

at 176,

Clausen v. Sea-3,
_______
______

1994) (quoting

Toscano v.
_______

Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991)).

______________

Rule

51

requires

punctual

"distinctly the matter objected to

objection

identifying

and the grounds of the objec___ _______ __ ___ ______

tion."
____

Fed.

WorldCom

R. Civ.

P. 51

(emphasis added).

interposed no record

objection to the

Here,

however,

special verdict

form, as distinguished from the jury charge defining "the measure

of

damages."

Moreover,

WorldCom

articulated

whatsoever for its

objection to the special verdict

jury charge.

Failure

particularity forfeits

See Scarfo,
___ ______

54 F.3d at

to

object

review under
_____

form or the

requisite

the "harmless error"

___ ________ _____

rule.
____

Cir. 1989); Elwood, 815 F.2d at

______

175-76; New York, N.H. & H.R. Co. v.

__________________________

1952).

the

grounds
_______

944; Linn v. Andover Newton Theological

____
___________________________

School, Inc., 874 F.2d 1, 5 (1st

____________

(1st Cir.

with

no

Consequently,

Zermani, 200 F.2d 240, 245

_______

appellate review is

limited to

14

determining whether a miscarriage of justice would occur were the

asserted

error not

corrected.

See Scarfo,
___ ______

54

F.3d at

940.

WorldCom can demonstrate no miscarriage of justice.

First,

district court,

the "fair market value" standard defined by the

see supra
___ _____

pp. 11-12, provided

the jury

with a

just and reasonable measure of damages under Massachusetts law in

these circumstances.

Killeen, 384 N.E.2d

_______

See Mechanics Nat'l. Bank of Worcester v.

___ ___________________________________

1231, 1239 (Mass. 1979)

(holding, in action

for breach of contract caused by wrongful foreclosure and sale of

shares

of stock,

market

value of

plaintiff was

the stock at

Paine, 112 N.E. 153, 155

_____

"entitled to

the time

recover the

of its sale");

fair

Hall v.
____

(Mass. 1916) (holding that "fair market

value" was proper measure of damages for stock broker's breach of

margin agreement

caused by

sale of

plaintiff's shares

without

authorization; noting that, generally speaking, fair market value

is proper measure

sale of goods

Thus,

at

articulated

of damages for breach of

contract relating to

which have an ascertainable value

the

very

by

the

least,

the

district

"fair

court

market

on the market).

value" standard

effectively

foreclosed

WorldCom's claim of

error under the "plain

of justice.") standard.8

error" ("miscarriage

The failure [to] instruct the jury on a

____________________

8Under
"substantial
or has
Lataille
________

the harmless error rubric, trial court error affects

rights" only if it results in substantial prejudice

a substantial
v. Ponte,
_____

effect on the
754 F.2d

outcome of

33, 37

(1st Cir.

the case.

See
___

1985) (defining

harmless error, in context of challenge to admission of evidence,

as "whether we can say 'with fair assurance ... that the judgment
was

not

substantially

swayed by

the

States v. Pisari
______
______

636 F.2d 855, 859 (1st

in

See also
___ ____

original)).

12 JAMES

15

error'"

(quoting United
______

Cir. 1981)) (alteration

WM. MOORE

ET AL.,

MOORE'S

measure of damages

other than the fair market

either

however,

standard,

instruction

outlined a fair

especially

value cannot meet

since

the

and reasonable measure

challenged

of damages,

and no other standard was proposed below.

WorldCom misses

Number had no market

or

release

for a

the mark

with its

value because its sale,

consideration

was

argument that

the

brokering, barter,

prohibited.9

Quite

the

____________________

FEDERAL PRACTICE
the

61.02[2] (3d ed. 1997).

In order to satisfy

"plain error" standard of review ("miscarriage of justice"),

however,

an

appellant

must

show

"more

than

the

simple

individualized harm which occurs whenever a litigant's failure to

object . . . alters
PRACTICE

51.21[2].

the outcome of a trial."

Among the factors

to be

9 MOORE'S FEDERAL

considered are:

whether the

failure

reviewing court of
of

to

raise

claim

below

deprived

the

helpful factfinding; whether the issue is one

constitutional magnitude;

highly

the

whether

the

omitted argument

is

persuasive; whether the opponent would suffer any special

prejudice; whether
and, perhaps

the omission

most importantly,

importance to the
v. Harwood; 69
_______

public.

F.3d 622,

whether the

or deliberate;

issue

is of

great

See National Ass'n of Social Workers

___ _________________________________
627-28 (1st

immunity" defense considered

it below).

was inadvertent

Cir. 1995)

("legislative

on appeal despite failure

See also 9 MOORE'S FEDERAL PRACTICE

___ ____

to raise

51.21[2].

Our

case, which implicates only the question of damages for breach of

a private agreement
great

between the litigants, presents

no issue of

public importance or constitutional magnitude; the Harwood

_______

factors, therefore, weigh in

present case

favor of Play Time.

Nor does

the

implicate the integrity of the judicial process, as

the proceedings below were conducted with meticulous attention to

the rights of both parties.

See Scarfo, 54 F.3d at 940.

___ ______

9The relevant industry guideline provides:

800

numbers

are not

commodities which can be

no

individual

proprietary

or

interest

to be

treated as

bought or sold

entity
in

is
any

granted
800

and
a

number

assigned.
Providers

RESP
are

ORGs

and

prohibited

800
from

Service
selling,

brokering, bartering, or releasing for a

fee

(or other consideration) any 800 number.

Reserving,
(Working)
Service

800

Assigning,
Numbers
_______

Providers,

or

by

or

activating

RESP

Customers

ORGs,

800

for

the

16

contrary,

the

acknowledges

Subscriber[s]

pertinent

the

. .

ultimate

. to

Industry

right

control

of

Guideline

"800

their 800

Service

explicitly

End-User

Service, and

their

reserved, active,

Guidelines

December

RESP

or assigned

for 800 Number

1, 1993).10

800 Service

Numbers."

Administration 2.2.1,

Industry

(Issue 3.0,

Instead, industry guidelines prohibit only

ORGs and "800" Service Providers from trading "800" numbers

for valuable consideration.

Id.
___

2.2.1,

1.

Subscribers, on the

other hand, are prohibited only from obtaining "800" numbers

the primary purpose of trading in them.

_______ _______

Thus,

foreclose, a

had

industry

failed

to

guidelines did

jury finding that

inherent value in

establish

Id. 2.2.1,
___

the marketplace.

that

any

right to

2.

not impede,

the right to control

for

let alone

the Number

Consequently, WorldCom

use

the

Number

was

valueless as a matter of law, let alone that any "error seriously

affected the fairness, integrity or public reputation of judicial

____________________

primary

purpose

of

selling,

bartering, or releasing for

brokering,

a fee (or

other

consideration) that 800 Number is prohibited.

______
However, the
scriber
their

has the
800

800 Service
ultimate

Service,

and

End-User Sub-

right to
their

control
reserved,

active, or assigned 800 Service Numbers.

Industry Guidelines

for 800

Number Administration 2.2.1

(Issue

3.0, December 1, 1993).

10Similarly, the
have

"no

ownership

particular 800
placing

interest

number," but

number

actually

[WorldCom] 800 Service

in

this [sic]

WorldCom tariff provided

or

proprietary

explicitly stated
and

17

in

also that
use

any

"upon
.

controlling interest

Tariff F.C.C.

(February 7, 1994).

right

substantially in

Customers do have a

800 number(s)."

that subscribers

No. 2,

C.3.3.3

proceedings."

Lash, 943 F.2d

____

at 152 (internal

quotation marks

omitted).

2.
2.

Judgment as a Matter of Law11

Judgment as a Matter of Law
___________________________

WorldCom

also

challenges

denying its motion for judgment

Civ. P.

50.

It

assigns two

the district

court

as a matter of law.

errors:

(i)

Play Time

ruling

See Fed. R.
___

failed to

establish recoverable damages, and (ii) sustained no damages from

any WorldCom

negligence.

As

WorldCom maintains that

Play Time

failed to prove

damages as

to a reasonable certainty that

a result of its failure to

it sustained any

assign the Number to Play

Time, we must inquire whether Play Time presented enough evidence

to enable a reasonable jury to determine, to the requisite degree

of certainty, the value of the Number.12

Our inquiry is guided by Massachusetts law:

The fundamental principle

damages for

of law upon

breach of contract

which

are assessed

____________________

11Appellate

challenges

under

Rule 50

face

hurdle:

Review of [a] denial of a motion for judgment

as a

matter of

law is plenary.

. .

. [W]e

review the record in the light most favorable

to the non-moving party.
denial of

such a

We will reverse the

motion only

if reasonable

persons could not have reached the conclusion

formidable

that the jury embraced.

Ansin v. River Oaks Furniture, Inc., 105 F.3d 745, 753 (1st
_____
__________________________
1997)

(internal quotation

marks

omitted),

petition for
________ ___

Cir.

cert.
_____

filed, 65 U.S.L.W. 3839 (U.S. June 10, 1997) (No. 96-1969).

_____

12WorldCom resurfaces its jury instruction challenge

the Number had

no inherent value,

Time established no

see supra p.
___ _____

recoverable damages.

As the

9; hence,

that

Play

Number was not

valueless as a matter of law, see supra pp. 16-17, its claim must
___ _____
be rejected in the present context as well.

18

is

that the injured party shall be placed in

the same position

the contract

he would have been

had been

in, if

performed, so

far as

loss can be ascertained to have followed as a

natural consequence and
the

contemplation

reasonable men as
breach, and so

to have been

of

the

a probable

parties

as

result of

the

far as compensation

in money can be computed by

within

therefor

rational methods

upon a firm basis of facts . . . .

John Hetherington & Sons, Ltd. v. William Firth, Co.,

________________________________
___________________

961, 964

(Mass. 1911).

Daewoo Corp.,
_____________

Hetherington).
____________

establish

leaving

923

See also
___ ____

F.2d

Thus,

209,

it

was

95 N.E.

Hendricks & Assocs., Inc. v.

__________________________

213

(1st Cir.

incumbent

1991)

upon

Play

(applying

Time

to

a firm evidentiary foundation for the damages claimed,

no

essential

element

to

"'conjecture,

surmise

or

hypothesis."

Snelling & Snelling of Mass. Inc. v.

____________________________________

N.E.2d 231, 232

964).

(Mass. 1963) (quoting

Wall, 189
____

Hetherington, 95 N.E.
____________

at

See also Air Safety, Inc. v. Roman Catholic Archbishop of

___ ____ ________________
____________________________

Boston, 94 F.3d 1, 4 (1st Cir. 1996); Hendricks, 923 F.2d at 217.

______
_________

Ample record evidence supported

Eisemann testified, based

real

estate leasing

the $50,000 valuation.

on his considerable experience

field, that

the Number, like

in the

other vanity

numbers, had inherent value for which would-be users were willing

to pay.

efforts to

In

addition, Eisemann and

close the

Levosky testified

deal whereby Levosky

was to

to their

acquire from

Eisemann the right to use the Number at the agreed $50,000 price.

Although

their deal could not be consummated,

their inability to

agree on value:

Levosky

it was not due to

offered $50,000 for

the

Number;

wanted

Eisemann

larger

was amenable

downpayment,

to

accepting

which Play

Time

$50,000, but

was

unable to

19

manage.

WorldCom

was motivated, in

order to

focuses on an

admission by Eisemann

part, to release

his rights to the

get Levosky, who had named him

that he

Number in

as a party defendant in

the lawsuit, "out of his hair."

WorldCom relies also on a letter

from Play Time's counsel to Eisemann,

which provided in relevant

part:

My client, Play-Time, offers to enter into an

option agreement
(or the

whereby Play-Time

entity that controls the

pays you
Number, if

different from you), $5000.00 for the

option

to purchase the right to use the Number for a

total
the

of $50,000.00
$5000.00 down

(i.e., $45,000.00
payment).

Play-Time would waive

_________ _____ _____
for
___

specific
________

In
__

plus

addition,
________

its claims against you

___ ______ _______ ___

performance, in
___________ __

exchange
________

for
___

your full
____ ____

cooperation in
___________ __

testimony
_________

as to the fair market value of the

__ __ ___ ____ ______ _____ __ ___

Number, the
______

details of

providing credible
_________ ________

which can

be worked

out later.

(Emphasis

clear

that

added.)

at least

WorldCom

argues that

a portion

of the

this letter

makes it

$50,000 agreed

upon by

Eisemann

and

Levosky

represented

the

value

of

Play

Time's

agreement to drop its lawsuit against Eisemann.

Although

interpretation,

distinct

WorldCom

proposes

an

entirely

another

is

that

the

letter

the

first

to

pay a

total

offers:

Eisemann's rights

in the Number;

reasonable

memorializes two

of

the second to drop

$50,000

for

the claims

against Eisemann in exchange for Eisemann's trial testimony as to

the value of the Number.

$50,000 figure had

Number

did

not

Thus, the WorldCom contention that the

not been based

preclude

entirely on the value

reasonable

20

jury

finding

of the

to

the

contrary.

was

Accordingly, we conclude

adequate

judgment,

to

and

withstand

that the

the

district

that the evidence on damages

WorldCom

motion

court committed

for

summary

no

error in

submitting the case to the jury.13

3.
3.

Mass. Gen. Laws ch. 93A, 11

Mass. Gen. Laws ch. 93A, 11
____________________________

Finally,

WorldCom

contends

that

the district

court

erred in awarding Play Time

treble damages under Mass. Gen. Laws

ch.

93A generally

93A,

11.

Chapter

proscribes

"[u]nfair

methods of competition and unfair or deceptive acts or

practices

in the conduct

93A,

of any trade or

(1984).

An

businesspeople is

actions and

commerce."

unfair

or

not actionable

deceptive

11 (West

action in this

11 unless

unfair act or practice occurred

Supp. 1996).

"the

primarily

Mass. Gen. Laws ch.

WorldCom contends that

case did not occur

between

alleged unfair method

and substantially within the commonwealth."

93A,

Laws ch.

practice

under section

transactions constituting the

of competition or the

Mass. Gen.

any unfair

"primarily and substantially"

within Massachusetts.

The

place

trial court findings

of performance"

clear error

907 F.2d

only.

1260, 1264

____________________

on the "nature,

of WorldCom's

actions

extent, and

are reviewed

for

Clinton Hosp. Ass'n. v. Corson Group, Inc.,

_____________________
___________________

(1st Cir. 1990).

On

the other

hand, the

13Alternatively,

WorldCom

in

there

can be

negligence

claim,

negligence

unless Play Time sustained injury

property.

We need

$50,000

arguing that

homes

not discuss this

damages award

contract claim.

is sustainable

on

the
no

Play

Time

recovery for

to its "person" or

argument, however,
simply on

the

as the

breach of

See, e.g., Hubbard v. Faros Fisheries, Inc., 626

___ ____ _______
_____________________

F.2d 196, 201 n.3 (1st Cir. 1980); see also supra pp. 8-9.
___ ____ _____

21

district court's ruling that WorldCom

of

proving

that

its

conduct

failed to carry its burden

"primarily

and

substantially"

occurred outside Massachusetts, see Mass. Gen. Laws ch. 93A,

___

raises a question of law for de novo review.

__ ____

of Canada, 109
_________

F.3d 820, 829 (1st

11,

Roche v. Royal Bank

_____
__________

Cir. 1997); see also

___ ____

Clinton
_______

Hosp., 907 F.2d at 1264.

_____

In

determining that WorldCom's actions were unfair and

deceptive, the district

of Joseph Shannon,

for WorldCom's
___

relied

who

Brady

which it considered entirely

extant agreement

on the testimony

expressed the view

Play Time.

court focused especially on

with Levosky.

of Charles Hurd,

the conduct

appropriate but
___

The

court also

Shannon's supervisor,

that WorldCom management

had mistreated

Finally, the court identified the off-color remark by

Buckley, see
___

supra p.
_____

6, as

"perhaps the

most dramatic

demonstration of [WorldCom]'s thumb-their-nose attitude."

district

court determined, all these actions took place entirely

within Massachusetts.

investigation

amounted

As the

to

The district

conducted

mere

court further found that the

by Deborah

"window

Surrette

dressing,"

and

thereby

Kelle Reeves

enhancing

the

deceptiveness and unfairness to Play Time.

WorldCom

court findings.

unfair and

In

Instead, it

deceptive conduct

particular,

assigned to

mounts no serious challenge to these district

it accurately

Eisemann by

argues that most of

took place

points

outside Massachusetts.

out that

a salesperson in

the allegedly

the

Indiana and

Number was

that the

ultimate decision to allow Eisemann to retain the Number was made

22

in New Jersey.

The Supreme

Judicial Court has outlined

functional approach," Roche,

_____

109 F.3d at

a "pragmatic,

829; see also

___ ____

U.S.A., Inc. v. Metlife Capital Credit Corp., 518

_____________
______________________________

Makino,
_______

N.E.2d 519,

523-24 (Mass.App.Ct. 1987), further app. rev. denied, 521 N.E. 2d

_______ ____ ____ ______

398

(Mass. 1988),

for

determining whether

alleged

misconduct

occurred "primarily

and substantially"

in

Massachusetts.

See
___

Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662, 672 (Mass.
_____________________
____________

1985).14

Its

inquiries:

approach has been

distilled into three

principal

"(1) where the defendant committed the deception; (2)

where plaintiff was deceived and

acted on the deception; and (3)

the situs

due to the deception."

109 F.3d

of plaintiff's losses

at 829; see
___

Bushkin, 473 N.E.2d

_______

also Clinton Hosp., 907 F.2d

____ ______________

at 672.

however, in approaching

of the person

person

who
___

uttered
_______

the

at 1265-66;

in Clinton Hospital,
_________________

the second Bushkin inquiry

_______

to whom the
__ ____

special significance, as

As we noted

deceptive statements

the location

are made is

distinguished from the location

deceptive

Roche,
_____

statements,

since

of

of the

"[t]he

victim's

ingestion of a

deceptive statement and

the subsequent

effects from reliance on it are what give the deceptive statement

its venomous sting."

The

Clinton Hosp., 907 F.2d at 1265-66.

_____________

district

court

analyzed only

the

first Bushkin
_______

____________________

14Although

Bushkin
_______

construed

"primarily and substantially"

Laws ch. 93A,

the

in

operative

the context

3(1)(b)(i), as appearing in

Clinton Hosp., 907 F.2d at 1264, ch. 93A,

_____________
language.
factors to

See
___

id.
___

Accordingly, we

11 as well.

language
of Mass.

Gen.

St.1967, c. 813, see

___

11 uses the identical

have applied

the Bushkin
_______

See id.; see also Roche,

___ ___ ___ ____ _____

109 F.3d at

829-31 (referring to "Clinton Hospital factors").

________________

23

factor,

finding that

the

conduct

on which

it

particular, the actions of Joseph Shannon and Brady

supra
_____

pp.

explained,

weighty.

4-6

all

took place

however, that the

Roche, 109 F.3d

_____

in

focused

Buckley, see
___

Massachusetts.

first Bushkin factor

_______

in

We have

is the least

at 829; see also Compagnie Reassurance

___ ____ _____________________

d'Ile de France v. New England Reinsurance Corp., 57 F.3d 56,

_______________
_____________________________

(1st Cir.), cert.

_____

denied, 116 S. Ct. 564

______

907 F.2d at 1265-66.

Although we agree

90

(1995); Clinton Hosp.,

_____________

with the district court,

other weightier

unfair or

visited

factors cut against

deceptive statements

upon Play

Time in

WorldCom as well.

made by

All the

WorldCom's agents

Massachusetts.

It

was there

were

that

Levosky dealt with Joseph Shannon; learned that WorldCom's Revere

office would not

Buckley

try to retain the Number for

believed any

learned the

potential

revenues were

Play Time because

inconsequential;

results of Surrette's superficial investigation; and

was provided

with

the numerous

pretexts

by WorldCom

for

not

obtaining the Number for Play Time.

WorldCom, on the other hand, misplaces primary reliance

on

the location

adverse decision

WorldCom sales

of the

WorldCom agents

(Surrette and Reeves

office (Indiana)

who made

in New

which obtained

the ultimate

Jersey), and

the

the Number

for

Eisemann.

Indiana

But the district court did not find the actions of the
___

sales agent

deceptive

part

conduct.15

and parcel

Moreover,

as

of

WorldCom's unfair

we have

noted,

or

the first

____________________

15Similarly, WorldCom's
able

to

assign

Massachusetts

the

Indiana agent

Number

to

employees followed

would not have

Eisemann

through on

had

been

WorldCom's

the commitment

to

24

Bushkin factor

is the least

weighty.

Finally, the

location of

_______

Surrette and

Reeves is

insufficient to

overcome the

competing

evidence which must be weighed under the other Bushkin factors

_______

including

Levosky's receipt of

the results of

Reeves "investigation" in Massachusetts

that the unfair and

all of which indicates

deceptive behavior took place

substantially within

Massachusetts.

carry

proving that the Chapter

its burden of

the Surrette and

Thus,

primarily and

WorldCom failed

to

93A claim was not

actionable.

III
III

CONCLUSION
CONCLUSION
__________

As

we conclude that all contentions raised by WorldCom

on appeal were waived or

meritless, the district court

judgment

is affirmed.
________

Costs are awarded to Play Time.

SO ORDERED.
SO ORDERED.
__________

____________________

Play Time.

See supra
___ _____

p. 5

(Indiana agent able

to obtain

the

Number only

because Revere

agents failed

order in computer).

25

to enter

Play Time's