850 F.2d 803

57 USLW 2041, 1988-1 Trade Cases 68,096,
12 Fed.R.Serv.3d
118

WELLS REAL ESTATE, INC., Plaintiff, Appellant,
v.
GREATER
LOWELL BOARD OF REALTORS, et al., Defendants, Appellees.

No. 87-1238.

United States Court of Appeals,
First Circuit.

Heard Feb. 1, 1988.
Argued June 23, 1988.

David F. Cavers, Jr., with whom Richard W. Mable and Powers
& Hall, P.C., were on brief, for plaintiff, appellant.

John M. Harrington, Jr., Boston, Mass. (for defendant, appellee
Nat. Ass'n of Realtors) with whom Thomas H. Hannigan, Jr., Ropes & Gray,
Stuart T. Rossman, Gaston Snow & Ely Bartlett, Elizabeth M. Fahey, Morrison,
Mahoney & Miller, David M. Roseman, Andrew M. Higgins, and Casner, Edwards
& Roseman, Boston, Mass., were on consolidated brief for defendants,
appellees.

Theodore E. Dinsmoor, Boston, Mass., for defendants, appellees
Greater Lowell Bd. of Realtors, Inc., its individual members, Greater Boston
Real Estate Bd., Inc., and Greater Salem and Lynn Boards of Realtors, Inc.

D. Alice Olsen, Boston, Mass., for defendants, appellees Eastern
Middlesex, and Quincy and South Shore Boards of Realtors, Inc.

Before COFFIN, Circuit Judge, ALDRICH, Senior Circuit Judge, and
PETTINE,*
Senior District Judge.

COFFIN, Circuit Judge.

1

This is the anticlimactic end of a prolonged antitrust
litigation involving two consolidated suits over the course of more than fifteen
years. Although a number of interesting issues were argued on appeal, most of
them fall by reason of the jury's finding that plaintiff had failed to establish
that defendants' activities had a substantial effect on interstate commerce, a
necessary element for liability under the Sherman Act. We affirm the
judgments.

I. FACTS

2

The plaintiff, Wells Real Estate, Inc. ("Wells"), was a real
estate brokerage located in Billerica, Massachusetts. Wells was started by
George Livadas in 1959 in Burlington, Massachusetts. Its major focus of business
was homes in the Lowell area, in particular those in the towns of Billerica and
Tewksbury. Until 1966 or 1967, Wells prospered. In the early 1960s, Mr. Livadas
attempted to expand the brokerage, through separate corporations, to other areas
of Massachusetts. But in the middle of that decade, Wells was suddenly faced
with the growing threat of serious competition from the defendant realtors
comprising the Greater Lowell Board of Realtors (the "Lowell Board"), another
defendant in this case. In response to this competition, Livadas reconsolidated
all of Wells' operations in the Burlington office, which was later moved to
Billerica.

3

Ever greater numbers of realtors were drawn to the area by the
advantages offered by the Lowell Board. In particular, the Board provided a
"multiple listing service" ("MLS"), which enabled member brokers to cooperate on
the sale of a much larger number of houses than if they remained independent.
Board members submitted their procured listings for houses to the Board. The
list of all of the members' houses was then available to the entire membership
to try to sell. When a house was sold, the profit would be split in some agreed
upon percentage between the listing broker and the selling broker. The rate of
commission was set by the listing broker. According to evidence submitted by the
plaintiff at trial, the rate of commission was almost always about 6 percent,
and the commission split between lister and seller was invariably 50 percent/50
percent of that rate. As a condition of membership in the Board, a realtor was
required to adhere to the constitution and by-laws of the national sponsor of
the local board, the National Association of Realtors (the "NAR"). The NAR, also
a defendant here, establishes methods of arbitration between realtors, and a
basic set of rules by which board practices, including the MLS, are to be run.
The NAR also imposes on its member boards and realtors a national Code of Ethics
for real estate sales.

4

The MLS dramatically increased the number of brokers in the
greater Lowell area. Wells' percentage of sales began to drop precipitously.
Wells was further disadvantaged by the fact that the listings in the MLS were
all "exclusive right to sell" listings, wherein the homeowner agrees to pay the
broker the commission rate even if the house is sold by another broker or by the
homeowner. This practice effectively removed all MLS houses from the rest of the
market, and thus precluded non-member realtors from attempting to broker those
sales.1

5

Wells chose not to join the Lowell Board. Mr. Livadas preferred
the old fashioned method, whereby everyone hunted down his own listings and had
to be quick to close sales in order to beat the other brokers to the punch.
Wells had prospered as long as that was the prevailing method. Livadas eschewed
the MLS, apparently because he did not share its members' implicit belief in the
benefits of cooperation. He testified that "[m]y job is to earn a living and not
to facilitate other brokers to get listings." The MLS, in his opinion,
eliminated the rewards for the hard-working realtor by letting some realtors get
by on simply collecting the commission split on sales without having to do the
groundwork of procuring the listing. His description of the changing market
revealed a nostalgia for the good old days, when profits were proportional to
time and effort: "[Before the MLS] it was a real competition. And the good ones
survived and the lazy ones would die. But today you have the opposite, ... the
parasites. The lazy ones survive because the system allows them to survive."
Most of Wells' listings remained open, because of the competitive pressures
imposed by the MLS.

6

In part because of Livadas' principled intransigence, Wells'
fortunes quickly evaporated. Its market share in the area was about 21% in 1965,
with annual sales of 286 houses. By 1976, Wells could sell only 56 houses.
Meanwhile, the Lowell Board MLS's share of the market increased from
approximately 36% in 1964 to about 53% in 1978. Wells was soon heavily in debt,
and had to cease operations in 1979.

7

In 1972, Wells brought suit against the Lowell Board of Realtors
and its individual members for various violations of the Sherman Anti-Trust Act,
15 U.S.C. Secs. 1 & 2. Wells alleged both a boycott of Wells from the MLS
and a conspiracy to monopolize the local real estate industry. Wells also
claimed that the MLS constituted an illegal tying arrangement, wherein access to
the listings (the tying product) was impermissibly conditioned on membership in
the Board with all its attendent conditions (the tied "product"). In addition,
Wells alleged various price-fixing violations, claims that were dismissed on
summary judgment in 1984. This 1972 action also named as defendants the National
Association of Real Estate Boards (now the NAR), and the state "parent" real
estate boards of both Massachusetts and New Hampshire. The New Hampshire State
Board was dismissed by the court in 1981.

8

In 1973, Wells instituted a similar action against all of the
other local real estate boards in Massachusetts, on the theory that Wells
effectively was deterred from entering those markets by similar MLS schemes
statewide. The price-fixing claims were dismissed by the court at the outset of
trial in January 1987, and shortly thereafter Wells filed stipulations of
dismissal with respect to all claims against all but five of the local boards in
the 1973 case.

9

Wells contended that the Boards restrained competition by
preventing access to the exclusive listings of the MLS; that the MLS members
conspired to set uniform commission rates throughout the market; and that the
realtors on the boards illegally set uniform commission "splits" for
distributing the profits made off of the MLS. Wells claimed that these practices
effectively served as an illegal boycott against those unwilling to join the
boards. Plaintiff's primary argument was that access to the MLS should not have
been conditioned on joining the boards, adhering to the rules established by the
boards, and acceding to the conditions of sales and commissions required by the
boards for access to the MLS. Wells also contended that the brokers illegally
conspired to exclude others from the market so as to achieve a monopoly therein.
The conspiracies to boycott and monopolize allegedly caused a substantial
reduction in competition amongst brokers in the area and unreasonably restrained
a substantial amount of interstate commerce.

10

The cases were consolidated for trial, which finally began in
early 1987. At the close of the plaintiff's evidence, the court directed
verdicts for the remaining five boards in the 1973 case. At the close of all the
evidence, the court directed a verdict for the remaining defendants (those from
the 1972 case) on the tying claim. The remainder of the case was submitted to
the jury on a special questionnaire. The jury was asked to answer specific
interrogatories regarding the group boycott and conspiracy to monopolize claims.
Based on the jury's answers to those questions, judgment was entered for all
defendants on each remaining count.

11

Wells appeals that jury verdict on numerous grounds, including,
inter alia, that the jury was wrongly instructed on interstate commerce; that
the jury's findings on interstate commerce were not supported by the record;
that the court's instructions on causation of injury were erroneous; that the
verdict was inconsistent; and that the court failed in the instructions properly
to distinguish between per se and rule of reason standards for testing antitrust
violations. Plaintiff also appeals the directed verdicts in favor of the 1973
case defendants, and the directed verdicts for the remaining defendants on the
tying claim. Finally, Wells finds fault with numerous evidentiary and pre-trial
discovery rulings made by the court.

II. THE JURY VERDICTS

12

On both the boycott and the monopoly claim, the district court
properly found that the jury's answers to the special interrogatories could not
support a verdict for the plaintiff. In particular, the jury found that although
the activities of some of the defendants did deny Wells access to the MLS,
unreasonably exclude brokers from the market, and cause a substantial reduction
in competition within that market,2
such activities (1) were not the predominant cause of Wells' decline and fall,
and (2) did not unreasonably restrain a substantial amount of commerce between
the states.3
We need not discuss the causation element, nor any of defendants' other theories
of liability, because we find that the plaintiff has failed to establish a
requisite finding of effect on interstate commerce to satisfy that necessary
element of its Sherman Act claims. Such a failure is dispositive of the
claims.

13

A. Improper Instructions on Interstate Commerce

14

Plaintiff now claims that the jury was improperly instructed on
the interstate commerce element of Wells' claims. On each count, the jury was
asked whether the defendants' allegedly anticompetitive activities "unreasonably
restrain[ed] a substantial amount of commerce between the states." On both
counts, the jury answered "no." Appellant argues that it was improper to
constrict the focus of the interstate commerce element to the challenged
activities of the defendants. Instead, Wells contends, the questions should have
been (1) whether defendants' activities generally were in or affected interstate
commerce, and then (2) whether there was a connection, "in practical economic
terms," between defendants' activities generally and those particular activities
challenged in the lawsuit as anticompetitive.

15

If we could consider the argument, it would have substance. In
McLain v. Real Estate Board of New Orleans, 444 U.S. 232, 100 S.Ct. 502, 62
L.Ed.2d 441 (1980), the Supreme Court held that an antitrust plaintiff does not
have to prove a direct, "particularized" connection between the challenged
activity and interstate commerce. 444 U.S. at 242-43, 100 S.Ct. at 509-10. "If
establishing jurisdiction required a showing that the unlawful conduct itself
had an effect on interstate commerce, jurisdiction would be defeated by a
demonstration that the alleged restraint failed to have its intended
anticompetitive effect. This is not the rule of our cases." Id. at 243, 100
S.Ct. at 509 (citations omitted).

16

But despite some language suggesting the contrary in McLain, see
id. at 242, 100 S.Ct. at 509, neither is it sufficient merely to show that some
aspect of the defendant's activity generally had a substantial effect on
interstate commerce. If that were the case, the interstate commerce element
would invariably be satisfied without even an inkling of proof that the
challenged activity was in any way connected to that part of the defendant's
business that affected interstate commerce. Rather, we have held, in Cordova
& Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank, N.A., 649 F.2d 36,
45 (1st Cir.1981), that the proper focus is on language found later in McLain,
emphasizing "the requirement that [defendants'] activities which allegedly have
been infected by a[n] [anticompetitive] conspiracy be shown 'as a matter of
practical economics' to have a not insubstantial effect on the interstate
commerce involved." 444 U.S. at 246, 100 S.Ct. at 511 (quoting Hospital Building
Co. v. Rex Hospital Trustees, 425 U.S. 738, 745, 96 S.Ct. 1848, 1852, 48 L.Ed.2d
338 (1976)).

17

We have interpreted McLain as holding that "a plaintiff need not
prove that a defendant's unlawful activities actually affected interstate
commerce; but ... [rather] that defendants' business still must be so connected
with interstate commerce that it is logical, as a matter of practical economics,
to believe that the unlawful activity will affect interstate commerce." Cordova
& Simonpietri, 649 F.2d at 45. This reading has been adopted by numerous
other circuits as well. See, e.g., Sarin v. Samaritan Health Center, 813 F.2d
755, 758 & n. 2 (6th Cir.1987); Seglin v. Esau, 769 F.2d 1274, 1280 (7th
Cir.1985); Hayden v. Bracy, 744 F.2d 1338, 1343 & n. 2 (8th Cir.1984);
Furlong v. Long Island College Hosp., 710 F.2d 922, 925-26 (2d Cir.1983); Crane
v. Intermountain Health Care, Inc., 637 F.2d 715, 720-24 (10th Cir.1981) (en
banc). But see Western Waste Service Systems v. Universal Waste Control, 616
F.2d 1094, 1097 (9th Cir.1980) (only defendant's business generally need affect
interstate commerce). It is this standard that appellants urge on us here, and
we agree that it would have been proper to instruct the jury in such a
manner.

18

Unfortunately for plaintiff, however, Wells' attorneys did not
ask for the "practical economics" instruction at the charge conference prior to
closing arguments. Instead, counsel proffered precisely the interpretation of
McLain that we rejected in Cordova & Simonpietri. App. 3481-83. "My only
point," counsel contended, "is my understanding of McLain as well as the Cordova
case is it is not the alleged illegal acts that need to be in commerce, but
rather activities of the defendants generally, illegal or legal." Id. at
3482-83. This request was properly rejected by the court, as it does not comport
with our reading of McLain.4
See Ouimette v. E.F. Hutton & Co., Inc., 740 F.2d 72, 76 (1st Cir.1984) ("a
requested instruction to the jury may be correctly refused if it is improper or
erroneous"). Although the court's eventual instruction to the jury erred in the
other extreme, plaintiff never asked for a correct definition of the interstate
commerce element. An exception on one ground cannot serve as the basis for
another, on a different ground, on appeal. Gillentine v. McKeand, 426 F.2d 717,
723 n. 19 (1st Cir.1970).5

19

Even if plaintiff's requested instruction had been proper,
counsel failed to raise that objection again subsequent to the actual charge.
According to a long line of precedents in this circuit, such an omission
constitutes waiver of the objection pursuant to Federal Rule of Civil Procedure
51.6
See, e.g., Brown v. Freedman Baking Co., Inc., 810 F.2d 6, 9 (1st Cir.1987); Coy
v. Simpson Marine Safety Equipment, Inc., 787 F.2d 19, 26 (1st Cir.1986);
Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat'l Bank, 757 F.2d 399, 411
(1st Cir.1985); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984); Monomoy
Fisheries, Inc. v. Bruno & Stillman Yacht Co., 625 F.2d 1034, 1036 (1st
Cir.1980); Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.1975);
United States v. Taglianetti, 456 F.2d 1055, 1056-57 (1st Cir.1972); Rivera v.
Rederi A/B Nordstjernan, 456 F.2d 970, 976 (1st Cir.1972); Dunn v. St. Louis-San
Francisco Ry. Co., 370 F.2d 681 (10th Cir.1966) (Aldrich, J., sitting by
designation); Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir.1955).

20

In this case, the court gave counsel abundant opportunity to
object to the charge after it was given. An extensive post-charge conference was
held with all counsel present. Counsel for the defendants took numerous
exceptions to the charge. Plaintiff's attorney did reiterate several of his
prior requests and exceptions, but with no mention of interstate commerce. Given
this "ample opportunity" at the post-charge conference, appellant cannot now be
said to have avoided waiver of its exception to the interstate commerce charge.
See Joia v. Jo-Ja Service Corp., 817 F.2d 908, 917 (1st Cir.1987).

21

With that waiver, the instruction as given becomes the law of
the case. See Shepp v. Uehlinger, 775 F.2d 452, 455-56 (1st Cir.1985) (citing
Moomey v. Massey-Ferguson, Inc., 429 F.2d 1184, 1187 (10th Cir.1970)). That
being so, the jury's answers leave appellant without any finding of the
necessary element of interstate commerce. Without that finding, appellant has
not met its burden of proving a Sherman Act violation.

22

We have recognized a "plain error" exception for failures to
adhere to Rule 51. However, the plain error rule "should be applied sparingly
and only in exceptional cases or under peculiar circumstances to prevent a clear
miscarriage of justice." Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir.1966).
We have adopted the standard for plain error in the Rule 51 context expressed by
professors Wright and Miller: " 'If there is to be a plain error exception to
Rule 51 at all, it should be confined to the exceptional case where the error
has seriously affected the fairness, integrity, or public reputation of judicial
proceedings.' " Morris v. Travisono, 528 F.2d 856, 859 (1st Cir.1976) (quoting 9
C. Wright & A. Miller, Federal Practice & Procedure Sec. 2558, at 675
(1971)). At the time Morris was decided, we had never reversed a civil case on
this basis, 528 F.2d at 859, and we have continued to acknowledge the plain
error rule without, to our knowledge, ever using it to upset a verdict. See,
e.g., Elwood v. Pina, 815 F.2d 173, 176 (1st Cir.1987); Almonte v. National
Union Fire Ins. Co., 787 F.2d 763, 769 (1st Cir.1986); Coy v. Simpson Marine
Safety Equipment, Inc., 787 F.2d 19, 26 (1st Cir.1986); Ouimette v. E.F. Hutton
& Co., Inc., 740 F.2d 72, 76 n. 4 (1st Cir.1984); McGrath v. Spirito, 733
F.2d 967, 969 (1st Cir.1984). We find no exceptional or peculiar circumstances
that make the present case any different. The plain error exception is
inappropriate here, especially since plaintiff's requested instruction at the
pre-charge conference represented a misstatement of the applicable
law.

B. Judgment Notwithstanding the Verdict

23

Appellant argues in the alternative that the jury's answers on
interstate commerce were wrong, that there was "no evidence to support the
jury's findings that there was not the requisite effect on interstate commerce."
Appellant asks that we "reverse" the jury's findings.

24

We do not reach the issue of the sufficiency of the evidence,
however, because plaintiff's counsel failed to move for a judgment
notwithstanding the verdict in the district court. Therefore we have no decision
of the district court to consider. In fact, plaintiff failed to move at any time
for a directed verdict under Federal Rule of Civil Procedure 50(a). Motion for
directed verdict must be made at the close of all evidence; moving at the close
of one's opponent's evidence generally will not suffice. See, e.g., R & R
Associates, Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir.1984).7
The motion must also be made with sufficient specificity to allow the district
judge to understand precisely why the evidence is insufficient. Appellate review
may be obtained only on the specific ground stated in the motion for directed
verdict. Pstragowski v. Metropolitan Life Ins. Co., 553 F.2d 1, 3 (1st
Cir.1977). A motion under Rule 50(b) for judgment notwithstanding the verdict
cannot be made unless the motion for directed verdict was properly brought
before the court. Javelin Investment v. Municipality of Ponce, 645 F.2d 92, 94
(1st Cir.1981).

25

"[A] federal appellate court may not reverse for insufficiency
of the evidence in the absence of an unwaived motion for directed verdict."
LaForest v. Autoridad de Las Fuentes Fluviales de Puerto Rico, 536 F.2d 443, 445
(1st Cir.1976). See also Javelin Instrument, 645 F.2d at 94. Plaintiff in this
case did not make any motion at any time for a directed verdict or a judgment
notwithstanding the verdict on the issue of interstate commerce. The court was
never asked to withhold the interstate commerce question from the jury because
of undisputed evidence on that issue, despite ample opportunity for counsel to
do so. Therefore, we cannot review a claim of insufficiency of the
evidence.

C. New Trial

26

Waiver of the right to request judgment notwithstanding the
verdict does not, however, preclude a party from moving for a new trial. See
Della Grotta v. Rhode Island, 781 F.2d 343, 350 (1st Cir.1986). Appellant now
asks us to order a new trial because the jury's verdict on the interstate
commerce issue is against the weight of the evidence. But here, too, counsel's
failure properly to preserve this contention forecloses review in this
court.

27

"The authority to grant a new trial ... is confided almost
entirely to the exercise of discretion on the part of the trial court." Allied
Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d
193 (1980). See also McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548,
556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984) (error for appellate court not to
defer to discretion of trial court in decision on new trial). Only an abuse of
that discretion will trigger reversal of a denial of a motion for new trial. See
Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir.1987); Sprague v.
Boston & Maine Corp., 769 F.2d 26, 27-28 & n. 3 (1st Cir.1985), and
cases cited therein. This is especially true where the motion for new trial is
made because the jury's verdict allegedly is against the weight of the evidence.
See Keeler v. Hewitt, 697 F.2d 8, 11 (1st Cir.1982). That is the sort of
decision most appropriately left to the broad discretion of the trial court,
because it is directly predicated on the facts and evidence adduced at trial,
and because a jury's verdict on the facts should only be overturned in the most
compelling circumstances.

28

"Where ... the district court's ruling would call into play a
discretionary matter, peculiarly appropriate for that court, it becomes more
important to bring the error first to that court's attention." Sampson v. Eaton
Corp., 809 F.2d 156, 161 (1st Cir.1987). Thus, a motion for new trial must be
made in the first instance before the trial court, particularly where the weight
of the evidence is at issue. See 6A Moore's Federal Practice Sec. 59.15, at
326-27 (2d ed. 1987). Cf. Carlton v. H.C. Price Co., 640 F.2d 573, 577 (5th
Cir.1981) (no appellate review of allegedly excessive or inadequate damages
where trial court not given opportunity to exercise its discretion on the
matter); Braunstein v. Massachusetts Bank & Trust Co., 443 F.2d 1281, 1285
(1st Cir.1971) (same). Such a motion must be made not later than ten days after
the entry of judgment. Fed.R.Civ.P. 59(b).

29

Plaintiff here never moved for a new trial, on weight of the
evidence or any other ground. This claim too, then, has not been preserved for
appeal.

30

D. Interstate Commerce as a Non-Jury Issue of Jurisdiction

31

In its reply brief, appellant raises for the first time yet
another alternative argument. Appellant claims that, because the interstate
commerce element allegedly is "jurisdictional" in nature, it was error to submit
any special question to the jury "where there was no factual conflict
whatsoever." Appellant cites Gough v. Rossmoor Corp., 487 F.2d 373 (9th
Cir.1973), wherein the Ninth Circuit seemed to hold that the "jurisdictional"
interstate commerce issue should never be submitted to the jury, even where the
evidence is in dispute. Id. at 377.

32

This assertion has also been waived, because appellant raised it
for the first time in its reply brief. See Pignons S.A. de Mecanique v. Polaroid
Corp., 701 F.2d 1, 3 (1st Cir.1983). Even if appellant had timely raised the
issue on appeal, however, this argument also was never made to the trial court.
A party cannot be heard to complain in this court that the trial court should
have made a preliminary determination of an issue rather than sending it to the
jury if the party did not request such action from the court itself. McGrath v.
Spirito, 733 F.2d 967, 969 (1st Cir.1984) (waiver of request that trial court
make preliminary determination of constitutionality of city council rule).
Plaintiff therefore argues in the alternative that, because the question of
interstate commerce is "jurisdictional," there can be no waiver on that issue.
Appellant insists that jurisdictional arguments can be raised at any time,
despite numerous failures to preserve those arguments in the district
court.

33

We reject both arguments. The interstate commerce question is
not a strictly jurisdictional issue in the sense that appellant suggests. But
even if it were, appellant's failure to preserve is dispositive.

34

In Gough v. Rossmoor Corp., the Ninth Circuit decided that the
interstate commerce question was "jurisdictional" rather than "substantive," and
thus suggested that such a question should not be decided by the jury. Id. at
377. This characterization of the interstate commerce element as
"jurisdictional" is not aberrant, for even Chief Justice Burger refers to it
that way repeatedly in McLain. 444 U.S. at 234, 235, 237, 239, 240, 242, 243,
244, 245, 246, 100 S.Ct. at 505, 505, 506, 507, 508, 509, 509, 510, 510, 511.
The genesis of such a practice seems to lie in the fact that without the
requisite effect on interstate commerce, no Sherman Act violation can be proved,
and without a Sherman Act violation in fact, there is no basis for this sort of
action to be in federal court. The statute provides the basis for both the
substantive claim and the federal subject matter jurisdiction.

35

This confluence of jurisdiction and substance "confuse[s] the
issue of the district court's authority to hear a case with the issues of the
adequacy of the complaint and the plaintiffs' ability to prevail on the merits
of their claim." Ortiz de Arroyo v. Barcelo, 765 F.2d 275, 279 (1st Cir.1985).
"Subject matter jurisdiction does not depend on the plaintiffs' ability to prove
the elements of their cause of action in their complaint." Id. This fundamental
principle has been well-established from the time of the Supreme Court's seminal
decision in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
Justice Black wrote:

36

Jurisdiction ... is not defeated ... by the possibility that the averments
might fail to state a cause of action on which [plaintiffs] could actually
recover. For it is well settled that the failure to state a proper cause of
action calls for a judgment on the merits and not for a dismissal for want of
jurisdiction. Whether the complaint states a cause of action on which relief
could be granted is a question of law and just as issues of fact it must be
decided after and not before the court has assumed jurisdiction over the
controversy. If the court does later exercise its jurisdiction to determine that
the allegations in the complaint do not state a ground for relief, then
dismissal of the case would be on the merits, not for want of
jurisdiction.

37

Id. at 682, 66 S.Ct. at 776 (footnotes and citations omitted).
See also Cloutier v. Town of Epping, 714 F.2d 1184, 1188 (1st Cir.1983); Chiplin
Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524, 1528-29 (1st
Cir.1983).

38

It is safe to say, therefore, that interstate commerce is not
the sort of subject matter jurisdiction issue that is wholly independent of the
factual elements of the substantive claim. In fact, they are so "closely
intertwined" that it is unfair to characterize interstate commerce as
"jurisdictional" at all, at least in the way that plaintiff now
suggests.

39

Indeed, if the interstate commerce question were to be
considered jurisdictional in nature, the plaintiff would have the burden of
establishing the requisite facts supporting the pleading in response to a motion
to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). But on a motion to dismiss under Rule 12(b)(6)--for failure
to state a claim--the plaintiff's pleadings are accepted as true for the
purposes of the motion.

40

The Supreme Court has discouraged motions to dismiss on the
interstate commerce ground, holding that plaintiffs should be given "ample
opportunity for discovery" to establish the factual predicates of the interstate
commerce element. Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S.
738, 746, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976). More recently, the Court
has suggested that summary judgment can also be a premature juncture for
disposition of the interstate commerce question, explicitly assuming that it
could be a jury question. McLain, 444 U.S. at 245, 100 S.Ct. at 510 ("it cannot
be said that there is an insufficient basis for petitioners to proceed to trial
to establish Sherman Act jurisdiction").8E.
Waiver and Jurisdiction

41

As we demonstrate above, plaintiff is mistaken in characterizing
the interstate commerce question as strictly "jurisdictional." But even were we
to agree that interstate commerce is a jurisdictional question, appellant's
argument that such jurisdictional questions cannot be waived still fails,
because appellant misconstrues the rule concerning jurisdiction and waiver
discussed in Eisler v. Stritzler, 535 F.2d 148 (1st Cir.1976). That rule holds
that the absence of subject matter jurisdiction can be raised at any time in the
litigation, regardless of waiver or stipulation. See Bender v. Williamsport Area
School Dist., 475 U.S. 534, 106 S.Ct. 1326, 1331 & n. 4, 89 L.Ed.2d 501
(1986) and cases cited therein; United States ex rel. P.J. Keating Co. v. Warren
Corp., 805 F.2d 449, 451 (1st Cir.1986) ("subject matter jurisdiction may be
challenged at any time before the case is finally decided") (emphasis supplied);
Daley v. Town of New Durham, 733 F.2d 4, 7 (1st Cir.1984) ("defect" in subject
matter jurisdiction cannot be cured by waiver or consent); Fed.R.Civ.P. 12(h)(3)
(dismissal when court "lacks" jurisdiction). See also Hydrogen Technology Corp.
v. United States, 831 F.2d 1155, 1162 n. 6 (1st Cir.1987) (jurisdictional
"defenses" cannot be waived). This exception to the strict rules of waiver is
necessary to prevent federal courts from adjudicating cases over which they have
no authority. The exception implicates an issue of the court's power. See
American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534,
541-42, 95 L.Ed. 702 (1951); United States v. United States Fidelity Co., 309
U.S. 506, 514, 60 S.Ct. 653, 657, 84 L.Ed. 894 (1940); Gilbert v. David, 235
U.S. 561, 568, 35 S.Ct. 164, 166, 59 L.Ed. 360 (1915); Daley, 733 F.2d at 7
("without subject matter jurisdiction, the court has no power to hear and decide
the case"). This sort of jurisdictional bar to the court's power may be raised
for the first time on appeal, or even by the appellate court or Supreme Court
sua sponte. Bender, 106 S.Ct. at 1331; City of Kenosha v. Bruno, 412 U.S. 507,
511, 93 S.Ct. 2222, 2225, 37 L.Ed.2d 109 (1973) (quoting Louisville &
Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126
(1908)); Hydrogen Technology Corp., 831 F.2d at 1162 n. 6; Fed.R.Civ.P. 12(h)(3)
("Whenever it appears by suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter, the court shall dismiss the
action.").

42

By contrast, appellant here asks us to decide that the court
(and the factfinder) was mistaken in finding that subject matter jurisdiction
did not exist. On Wells' view of "jurisdiction," the jury (incorrectly) decided,
based on the court's (incorrect) special question, that the court lacked subject
matter jurisdiction in the first instance. Despite its numerous waivers, Wells
argues, this "jurisdictional" question can be reviewed at any time. This
contention misconstrues the "unwaivability" rule. The court's final judgment
that it did not have "jurisdiction" in no way means that the court was acting
outside its power in entertaining the controversy. On the contrary. While not
necessary to our decision because of our holding that the question is not
strictly jurisdictional, we find that the jurisdictional exception to the waiver
rule would nevertheless be inapposite here.9

43

Wells failed to preserve objections to: (1) the fact that the
question went to the jury at all; (2) the nature of the question that was
submitted to the jury; (3) the sufficiency of the evidence to support the jury's
finding; and (4) a verdict allegedly against the clear weight of the evidence.
The verdict of the jury therefore must be upheld, because the plaintiff has
failed to establish the requisite degree of effect on interstate
commerce.

III. THE TYING CLAIM

44

We turn now to the directed verdict for the defendants on
appellant's tying claim. Appellant claims that conditioning access to the MLS on
membership in the Boards constituted an impermissible tying claim, illegal per
se under the Sherman Act.

45

Tying arrangements involve the use of leverage over the market
for one product (the "tying" product) to coerce purchases of a second product
(the "tied" product). In this case, the MLS is the alleged "tying" product, and
the Board membership is the ostensible "tied" product. The anticompetitive
effect of an illegal tying arrangement takes place in the market for the tied
product.

46

[T]he essential characteristic of an invalid tying arrangement lies in the
seller's exploitation of its control over the tying product to force the buyer
into the purchase of a tied product that the buyer either did not want at all,
or might have preferred to purchase elsewhere on different terms. When such
"forcing" is present, competition on the merits in the market for the tied item
is restrained and the Sherman Act is violated.

47

Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 12,
104 S.Ct. 1551, 1558, 80 L.Ed.2d 2 (1984). See also id. at 13 n. 19, 104 S.Ct.
at 1558 n. 19 (quoting Fortner Enterprises v. United States Steel Corp., 394
U.S. 495, 512-14, 89 S.Ct. 1252, 1263-64, 22 L.Ed.2d 495 (1969) (Fortner I )
(White, J., dissenting)) (explaining deleterious effect in tied product
market).

48

In order to show an illegal tying arrangement, a plaintiff must
demonstrate three separate elements: (1) that an actual tie exists between two
separate products, such that purchase of one is conditioned on purchase of the
other; (2) that the seller has sufficient "market power" in the tying product to
compel acceptance of the tied product; and (3) that the tie affects a "not
insubstantial" amount of interstate commerce in the market for the tied product.
See Fortner I, 394 U.S. at 498-501, 89 S.Ct. at 1256-58; Northern Pacific Ry.
Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518-19, 2 L.Ed.2d 545
(1958); Kenworth of Boston, Inc. v. Paccar Financial Corp., 735 F.2d 622, 623-24
(1st Cir.1984).

49

The district court dismissed Wells' tying claim on the theory
that Wells had no standing to bring such a claim because it was neither a
purchaser of nor a competitor in the market for the tied "product," real estate
board memberships. We affirm the dismissal, but on alternative
grounds.

50

A plaintiff need not have actually consented to the purchase of
the tying and tied products in order to bring a claim under the Sherman Act.
See, e.g., Systemized of New England, Inc. v. SCM, Inc., 732 F.2d 1030, 1033
(1st Cir.1984) (after plaintiff backed out of the tying arrangement, defendant
withdrew availability of tying product); A.I. Root Co. v. Computer/Dynamics,
Inc., 806 F.2d 673, 675 (6th Cir.1986) (rather than accede to alleged tying
arrangement, plaintiff purchased alternative brands); Kingsport Motors, Inc. v.
Chrysler Motors Corp., 644 F.2d 566 (6th Cir.1981) (plaintiff denied access to
tying product after refusal to use tied product). It is less clear whether a
plaintiff subject to a tie must have some interest in purchasing the tied
product, i.e., whether a purchaser of the tying product is sufficiently injured
merely by having to purchase an unwanted tied product. The Supreme Court has
written that "when a purchaser is 'forced' to buy a product he would not have
otherwise bought even from another seller in the tied-product market, there can
be no adverse impact on competition because no portion of the market which would
otherwise have been available to other sellers has been foreclosed." Hyde, 466
U.S. at 16, 104 S.Ct. at 1560. Defendants invoked this passage as indicating
that Wells had no tying claim because it was not a potential "purchaser" of
board memberships.

51

But we read the passage in question not as relevant to the issue
of plaintiffs' injury and standing to sue, but as regarding the plaintiffs'
showing as to the "not insubstantial" volume of commerce that is foreclosed by
the tie. See Barber & Ross Co. v. Lifetime Doors, Inc., 810 F.2d 1276, 1279
n. 1 (4th Cir.1987). Otherwise, it would be impossible to reconcile the Supreme
Court's language with the clear statement earlier in the same case that invalid
tying exists where the buyer is forced "into the purchase of a tied product that
the buyer either did not want at all, or might have preferred to purchase
elsewhere on different terms." 466 U.S. at 12, 104 S.Ct. at 1558 (emphasis
supplied). In order to have standing, then, the plaintiff need only have been
injured by the alleged anticompetitive act--it need not have been injured
directly by the very anticompetitive effects sought to be remedied by the
statute. The plaintiff must assert an "injury in his business or property by
reason of anything forbidden in the antitrust laws." 15 U.S.C. Sec. 15. This
Wells has done.

52

However, Wells' action is indeed fatally affected by the excerpt
from Hyde quoted above. Wells has failed to demonstrate the slightest market for
membership in real estate boards that might have been affected by the
defendants' alleged tying arrangement. There is no evidence that any other
broker would have "purchased" membership in any other board but for the power
exerted by the lure of the defendants' MLS. There is no evidence that a
substantial volume of "commerce" in board membership was foreclosed by the
tie-in.10
The tying claim must fail absent any proof of anti-competitive effects in the
market for the tied product.11

53

We are also doubtful whether this situation constitutes a "tie"
of separate "products" in the first place. We are unaware of any federal case
that has characterized a multiple listing service as a tying arrangement.12
But see People v. National Ass'n of Realtors, 120 Cal.App.3d 459, 174 Cal.Rptr.
728, 732-35 (1981) (applying state law tying doctrine to MLS); People v.
National Ass'n of Realtors, 155 Cal.App.3d 578, 202 Cal.Rptr. 243, 247 (1984)
(affirming trial court finding of illegal tying arrangement); but compare People
v. Colorado Springs Bd. of Realtors Inc., 692 P.2d 1055, 1065-67 (Colo.1984) (en
banc) (no tying arrangement in MLS under state law). The defendant boards are
not "sellers" in the usual sense of the term, but rather a trade organization.
The MLS is one of the advantages gained by joining that trade organization.
Membership brings with it certain responsibilities as well. Whether or not it is
subject to challenge on other antitrust grounds, such an arrangement is not a
matter of invalid tying. Indeed, we have not been alerted to any federal case in
which similar requirements and incentives of such an organization have been
described as a tying arrangement. We need not definitively determine whether
such a characterization would ever be apt, however, because we affirm the
dismissal for the reasons stated above.

IV. DIRECTED VERDICTS IN THE COMPANION CASE

54

The district court directed verdicts for all of the defendant
real estate boards in the 1973 case at the close of plaintiff's evidence.
Plaintiff appeals three of these verdicts, those in favor of the Greater Boston,
Eastern Middlesex, and Quincy/South Shore Boards of Realtors.

55

Wells filed its complaint against these boards on June 19, 1973.
The four-year statute of limitations prescribed by 15 U.S.C. Sec. 15 limits
Wells to damages sustained after June 19, 1969. Wells' sole office from 1969
onward was located in Billerica, within the provinces of the Greater Lowell
Board. Wells did have offices in the Greater Boston and Eastern Middlesex areas
prior to 1969, but closed them down permanently before the period applicable to
this litigation. A wholly separate, though related, corporation, Wells Real
Estate Of Braintree, Inc., operated an office within the jurisdiction of the
Quincy/South Shore Board in the mid-sixties. It too was shut down before 1969.
Mr. Livadas claims to have closed at least some of these branch offices because
of the futility of competing with the allegedly illegal MLSs of the local
boards. Wells sold a handful of houses in the Greater Boston and Eastern
Middlesex areas after 1969, but the overwhelming preponderance of its business
was concentrated in the Greater Lowell area.

56

We wholeheartedly agree with the trial court's dismissal of the
claims against these defendants for the reasons articulated by the court. There
was no evidence of a group boycott by the three boards against Wells. While it
may have been futile for Wells to request access to the MLSs in those areas
without agreeing to join the boards, Wells never asked for such access under any
conditions. Indeed, there was some evidence that Mr. Livadas did not desire
access to the MLSs--he merely wished to eliminate them. Appellant never
complained to defendants, either formally or informally, about the conditions,
rules, or practices attendant to the MLSs. No occasion existed for the
defendants to have boycotted Wells.

57

The only evidence of conspiracy to monopolize seems to have been
the boards' membership in the state and national associations. The district
court correctly noted that this is not, in and of itself, sufficient to
establish an illegal conspiracy to monopolize. See Federal Prescription Service,
Inc. v. American Pharmaceutical Ass'n, 663 F.2d 253, 265 (D.C.Cir.1981). Unlike
in the case of the 1972 defendants, there was no evidence admitted concerning
commission splits, fixed commission rates, etc. The jury could not reasonably
have found a conspiracy to monopolize on the basis of the scanty evidence in the
record regarding these defendants. Nor could the jury have found an improper
tying arrangement, for the reasons discussed in Section III, supra.

58

Neither was there any dispositive evidence regarding what Wells'
damages might have been as a result of the alleged boycott and conspiracy. The
jury may have been able to decide that without the MLSs, Wells might have
cornered a greater share of the markets in the three areas in question, but the
district court properly found that specific damages would have been completely
speculative. Although "a private antitrust litigant is not required to prove the
amount of its damages with mathematical certainty ..., this guiding principle
does not shift the burden of proof and ... it is proper to indulge private
antitrust plaintiffs only to the extent that there is evidence on the record
from which a trier of fact could make a 'just and reasonable inference'
regarding the amount of damages. If the plaintiff's proffered evidence permits
no more than 'pure speculation and guesswork,' then the damage evidence is
insufficient as a matter of law." Home Placement Service, Inc. v. Providence
Journal Co., 819 F.2d 1199, 1205 (1st Cir.1987) (citations omitted) (quoting
Wallace Motor Sales, Inc. v. American Motors Sales Corp., 780 F.2d 1049, 1062
(1st Cir.1985) (in turn quoting Bigelow v. RKO Radio Pictures, 327 U.S. 251,
264, 66 S.Ct. 574, 579, 90 L.Ed. 652 (1946)).

59

The jury in this case had only Mr. Livadas' testimony that he
might have continued to expand his business in those areas but for the growth of
the MLSs. Wells made almost no attempt to retain any sort of market share in the
areas in question. Even were we to assume that there was sufficient evidence of
boycott and/or conspiracy, there is no way to draw any connection between those
activities and Wells' injuries without "pure speculation and guesswork."Finally,
even if boycott and monopoly had been established by the plaintiff, there is no
reason to think that the jury would have decided any differently in the 1973
case than it did in the 1972 case with regard to effect on interstate commerce.
In fact, less evidence was presented regarding the scope of these defendants'
activities.

V. MISCELLANEOUS ISSUES

60

Appellant offers several additional arguments regarding alleged
errors made by the district court on various matters of discovery and evidence.
We have examined closely each of the contested decisions, and we find that the
district court was well within its discretion on each of the matters in
question.

61

Moreover, even if every one of the discovery and evidentiary
rulings had been erroneous, their cumulative effect would have been immaterial.
Not a single one of them, nor all of them combined, had the slightest impact on
the plaintiff's failure to establish the necessary effect on interstate
commerce. That issue, as we have explained above, is dispositive in this
case.

VI. CONCLUSION

62

For the foregoing reasons, we decline to upset the
verdicts.

63

Affirmed.

*

Of the District of Rhode Island, sitting by designation

1

The other two common types of listings, which provide far less security for
the brokers utilizing them, are the "open" listing and the "exclusive agency"
listing. An open listing is an agreement that the broker will get the commission
only if that broker procures the buyer. This enables the homeowner to list with
multiple brokers but pay a commission to only one. This naturally provides for
far less security for the broker and far more competition between brokers. The
exclusive agency listing is the same as the exclusive right to sell listing,
except that the broker does not receive a fee if the homeowner sells the
home

2

The jury unequivocally found that the plaintiff had failed to prove that the
activities of the national and state board of realtor defendants had any
noncompetitive effect

3

There were various other theories on which the defendants argued that the
jury answers necessitated judgment in their favor, but the district court relied
solely on the two reasons mentioned in the text

4

Similarly, plaintiff's submitted requested instruction was: "It is
sufficient, in the case of each defendant, that its activities either cross
state lines or had a substantial impact on interstate commerce." App. 3143.
Though some of the examples thereafter provided would properly satisfy the
interstate commerce element as described in Cordova & Simonpietri, the
requested standard was not sufficiently precise, and arguably mischaracterized
the plaintiff's burden

5

Assuming that counsel meant by his vague statements to suggest the definition
of the interstate commerce he now urges us to adopt, such a request was not made
with sufficient "distinctness" to satisfy the dictates of Federal Rule of Civil
Procedure 51. See, e.g., Elwood v. Pina, 815 F.2d 173, 175-76 (1st Cir.1987);
Jordan v. United States Lines, Inc., 738 F.2d 48, 51 (1st Cir.1984). "Objections
must be 'sufficiently specific to bring into focus the precise nature of the
alleged error.' " Gay v. P.K. Lindsay Co., Inc., 666 F.2d 710, 712 (1st
Cir.1981) (quoting Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 483, 87
L.Ed. 645 (1943))

6

Rule 51 reads in pertinent part: "No party may assign as error the giving
[of] or the failure to give an instruction unless that party objects thereto
before the jury retires to consider its verdict, stating distinctly the matter
objected to and the grounds of the objection."

7

Under very rare circumstances, such a motion need not be repeated at the
close of all evidence if such a repetition is clearly superfluous or futile. See
Beaumont v. Morgan, 427 F.2d 667 (1st Cir.1970); Bayamon Thom McAn, Inc. v.
Miranda, 409 F.2d 968 (1st Cir.1969). However, such a case will be unusual,
existing only when the additional evidence is so insubstantial as to make no
possible difference as to sufficiency, and when, as in Bayamon Thom McAn, the
lag between the close of plaintiff's evidence and the end of trial is
negligible. See Della Grotta v. Rhode Island, 781 F.2d 343, 350 (1st Cir.1986);
); Martinez Moll v. Levitt & Sons of Puerto Rico, Inc., 583 F.2d 565, 569-70
(1st Cir.1978); Gillentine v. McKeand, 426 F.2d 717, 722-23 (1st
Cir.1970)

8

The Ninth Circuit, in a long series of cases on this issue subsequent to
Gough, has come to essentially the same conclusion, thereby undercutting the
authority of Gough for Wells' contention. See Sun Valley Gasoline, Inc. v. Ernst
Enterprises, Inc., 711 F.2d 138, 139-40 (9th Cir.1983) (jurisdictional finding
on motion to dismiss inappropriate when jurisdictional and substantive issues
are so intertwined that one is dependent on the other); Hasbrouck v. Texaco,
Inc., 663 F.2d 930, 933-34 (9th Cir.1981) ("jurisdictional issue" of whether
sales were "in commerce" is "normally a fact question for the jury to resolve");
Western Waste Service Systems v. Universal Waste Control, 616 F.2d 1094, 1095-96
n. 1 (9th Cir.1980); Thornhill Publishing Co., Inc. v. General Telephone &
Electronics Corp., 594 F.2d 730, 733-35 & n. 10 (9th Cir.1979); Berardinelli
v. Castle & Cooke Inc., 587 F.2d 37 (9th Cir.1978) (following Gough )
(distinguished in Thornhill, 594 F.2d at 735); Timberlane Lumber Co. v. Bank of
America, N.T. & S.A., 549 F.2d 597, 601-03 (9th Cir.1976) (discouraging
pre-trial dispositions of commerce issues)

For an early, thorough discussion of this problem in Sherman Act cases, see
Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884, 890-96 (3d
Cir.1977).

9

For instance, if a district court dismisses an action because the complaint
fails adequately to allege federal jurisdiction, the plaintiff cannot receive
relief in this court on another theory of jurisdiction that was not pleaded and
not raised in the district court, despite the fact that the issue is undoubtedly
"jurisdictional."

10

Even if we were to find that Wells had sufficiently proven the requisite
volume of commerce foreclosed, there is no reason to think that the jury's
verdict on the interstate commerce element of the tying claim would have
differed from those it rendered on the other claims

11

This is not to say that a plaintiff necessarily must prove the actual scope
of anti-competitive effects in the market--the per se rule eliminates such a
requirement. But the plaintiff must make some minimal showing of real or
potential foreclosed commerce caused by the tie, if only as a matter of
practical inferential common sense. Wells' real error here was in failing to
show that there was a "market" at all for real estate board membership

12

Whether it is an unlawful group boycott or an illegal example of price-fixing
is a much more complex question. See United States v. Realty Multi-List, Inc.,
629 F.2d 1351 (5th Cir.1980)

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