Ramallo Bros. Printing, Inc. v. El Día, Inc.

United States Court of Appeals
For the First Circuit
No. 06-2512

RAMALLO BROS. PRINTING, INC.,

Plaintiff, Appellant,

v.

EL DÍA, INC.; EDITORIAL PRIMERA HORA, INC.;
ADVANCED GRAPHIC PRINTING, INC.; CARLOS NIDO,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

(Hon. José Antonio Fusté, U.S. District Judge)

Before

Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Stafford,* Senior District Judge.

Camilo K. Salas III, with whom Salas & Co., L.C., John F.
Nevares, and John F. Nevares and Associates P.S.C., were on brief,
for appellant.
Lee H. Simowitz, with whom Bruce W. Sanford, Mark A. Cymrot,
Baker & Hostetler LLP, Salvador Antonetti-Zequeira, and Fiddler
González & Rodríguez, PSC, were on brief, for appellees.

June 18, 2007

*
Of the Northern District of Florida, sitting by designation.
 STAFFORD, Senior District Judge. Appellant, Ramallo

Bros. Printing, Inc. ("Ramallo"), appeals from the district court's

dismissal of its complaint on res judicata and collateral estoppel

grounds. We AFFIRM.

I.

A.

Briefly summarized, the facts as alleged in Ramallo's

complaint are as follows. Ramallo is a commercial printer whose

business includes, among other things, the printing of corporate

supplements that are inserted in and delivered with newspapers of

general circulation in Puerto Rico. Appellees, El Día, Inc. ("El

Día"), and Editorial Primera Hora, Inc. ("Editorial Primera Hora"),

own and publish newspapers in Puerto Rico that occasionally contain

corporate supplements. El Día owns and prints El Nuevo Día, a

leading newspaper in Puerto Rico. Editorial Primera Hora owns

Primera Hora, a Puerto Rican daily newspaper printed by El Día.

Appellee, Advanced Graphic Printing, Inc. ("AGP"), is a

commercial printing business established by El Día as a department

of El Nuevo Día. Among other things, AGP prints corporate

supplements for insertion in El Nuevo Día and Primera Hora. As a

matter of policy, El Día and Editorial Primera Hora require that

all corporate supplements inserted into El Nuevo Día and Primera

Hora be printed by AGP.

On February 24, 2006, Ramallo celebrated its fortieth

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anniversary. To commemorate the event, Ramallo prepared and

printed a corporate supplement to celebrate and advertise its

accomplishments as a commercial printer. Ramallo tendered its

corporate supplement to El Día for insertion in El Nuevo Día and

Primera Hora, but Carlos Nido,1 El Nuevo Día's Vice President of

Sales, informed Ramallo that its fortieth anniversary supplement

could not be inserted into either El Nuevo Día or Primera Hora

because it had not been printed by AGP. Ramallo thereafter filed

this lawsuit, challenging the policy that makes printing by AGP a

requirement for insertion of corporate supplements into El Nuevo

Día and Primera Hora.

B.

In 2002, approximately four years before Ramallo filed

this case, Ramallo filed another lawsuit against the same

defendants that are sued here. See Ramallo Bros. Printing, Inc. v.

El Día, Inc., 392 F. Supp. 2d 118 (D.P.R. 2005) ("Ramallo I"). At

the time of Ramallo I, El Día had designated Creative Minds, a

former El Nuevo Día staff unit that was then a division of AGP, to

be its exclusive agent for producing and printing any corporate

supplements that were inserted into El Nuevo Día and Primera Hora.

The district court in Ramallo I described the relevant policy

regarding corporate supplements as follows:

1
While Carlos Nido was named as a defendant in this case, no
claims were asserted against him, no relief was sought from him,
and he is not a party to this appeal.

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 Creative Minds performs all the functions
needed to produce the supplement, including
preparation of editorial content and artwork,
sales of advertising, coordination of the
printing and insertion in the newspaper.
Defendants' stated reasons for the policy of
using only Creative Minds to produce corporate
supplements are the need to maintain editorial
integrity, to ensure the content is accurate
and comports with its style and content
policies, and to take advantage of cost
savings.

Id. at 124-25.

In Ramallo I, Ramallo challenged El Día's policy of

inserting into its newspapers only corporate supplements produced

and printed by Creative Minds. Ramallo claimed, among other

things, that such policy violated both federal and Commonwealth

antitrust laws. The district court rejected Ramallo's claims,

finding no antitrust violations at all. In particular, the

district court found that (1) El Día's supplement policy had no

significant anti-competitive effect, given that corporate

supplements constitute "a de minimis part of the advertising and

printing business in Puerto Rico," Ramallo I, 392 F. Supp. 2d at

136; (2) the printing and delivery of corporate supplements did not

comprise separate products (a tying product and a tied product)

but, rather, two components of a single product—the preparation of

a section of the newspaper, id. at 136-37; (3) the businesses

featured in the corporate supplements were not coerced into buying

any product because the supplements were financed entirely through

advertising revenues, id. at 137; and (4) corporate supplements are

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an editorial product, the newspaper's control of which is protected

by the First Amendment. Id. Ramallo having filed no appeal, the

district court's decision in Ramallo I has become final.

C.

In this case, in its amended complaint,2 Ramallo

challenges the newspapers' refusal to insert its fortieth

anniversary corporate supplement in El Nuevo Día and Primera Hora.

Specifically, Ramallo alleges that, by tying the printing of the

fortieth anniversary supplement to the delivery of that supplement

in El Nuevo Día and Primera Hora, the newspapers restrained trade

and eliminated competition in the printing and delivery markets for

corporate supplements, all in violation of the Sherman Act and the

antitrust laws of Puerto Rico.

The district court (in the person of the same district

judge who presided over Ramallo I) dismissed Ramallo's claims,

explaining:

A comparison of Plaintiff's current
complaint with its complaint in Ramallo I
reveals that the factual underpinning for both
cases is materially identical. . . . Plaintiff

2
We do not consider claims raised in Ramallo's initial
complaint that were not restated in its amended complaint. See
Kolling v. American Power Conversion Corp., 347 F.3d 11, 16 (1st
Cir. 2003) (noting that "[Plaintiff's] amended complaint completely
supersedes his original complaint, and thus the original complaint
no longer performs any function in the case"). 6 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &
Procedure § 1476 (2d ed. 1990) (explaining that "[o]nce an amended
pleading is interposed, the original pleading no longer performs
any function in the case").

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 alleges in both complaints that Defendants'
corporate supplement printing policy is
intended to foreclose competition in the
printing market. . . .

Indeed, the only difference between the
factual allegations in these two cases is that
Ramallo I focused on the effect that
Defendants' policy had on Plaintiff's ability
to print supplements for third parties,
whereas Plaintiff's current claims challenge
the application of Defendants' policy to a
corporate supplement that Plaintiff recently
printed for itself, rather than a third party.

Dist. Ct. Order at 8.

The district court rejected Ramallo's argument that the

doctrines of res judicata and collateral estoppel were inapplicable

because the two cases were different, the more recent case

involving events that post-dated the earlier case altogether, and

the two cases involving supplements prepared for different

purposes. The district court found that the distinctions advanced

by Ramallo were legally insignificant. Characterizing Ramallo's

new case as "nothing more than a second challenge to Defendants'

overall corporate supplement printing policy," the district court

determined that Ramallo's current claims were barred by the

doctrines of both res judicata and collateral estoppel.

II.

A.

We review de novo a district court's dismissal of a case

on res judicata and collateral estoppel grounds. Gonzalez-Pina v.

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Rodriguez, 407 F.3d 425, 429-30 (1st Cir. 2005). We accept as true

the factual allegations of the complaint and draw all reasonable

inferences in the plaintiff's favor. Greene v. Rhode Island, 398

F.3d 45, 48 (1st Cir. 2005). Because the judgment in Ramallo I was

entered by a federal court exercising federal question

jurisdiction, the applicability of res judicata and collateral

estoppel is a matter of federal law. Maher v. GSI Lumonics, Inc.,

433 F.3d 123, 126 (1st Cir. 2005).

B.

The Supreme Court long ago described the doctrine of

collateral estoppel, or issue preclusion, as follows:

The general principle announced in numerous
cases is that a right, question, or fact
distinctly put in issue, and directly
determined by a court of competent
jurisdiction, as a ground of recovery, cannot
be disputed in a subsequent suit between the
same parties or their privies; and, even if
the second suit is for a different cause of
action, the right, question, or fact once so
determined must, as between the same parties
or their privies, be taken as conclusively
established, so long as the judgment in the
first suit remains unmodified. This general
rule is demanded by the very object for which
civil courts have been established, which is
to secure the peace and repose of society by
the settlement of matters capable of judicial
determination. Its enforcement is essential to
the maintenance of social order; for the aid
of judicial tribunals would not be invoked for
the vindication of rights of person and
property if, as between parties and their
privies, conclusiveness did not attend the
judgments of such tribunals in respect of all
matters properly put in issue, and actually
determined by them.

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S. Pac. R.R. Co. v. United States, 168 U.S. 1, 48-49 (1897). More

recently, the Court explained that the doctrine "means simply that

when an issue of ultimate fact has once been determined by a valid

and final judgment, that issue cannot again be litigated between

the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S.

436, 443 (1970); see also Keystone Shipping Co. v. New England

Power Co., 109 F.3d 46, 51 (1st Cir. 1997) (explaining that "[t]he

principle of collateral estoppel, or issue preclusion, . . . bars

relitigation of any factual or legal issue that was actually

decided in previous litigation between the parties, whether on the

same or a different claim") (internal quotation marks and citations

omitted).

A party seeking to invoke the doctrine of collateral

estoppel must establish that (1) the issue sought to be precluded

in the later action is the same as that involved in the earlier

action; (2) the issue was actually litigated; (3) the issue was

determined by a valid and binding final judgment; and (4) the

determination of the issue was essential to the judgment.

Keystone, 109 F.3d at 51. Here, the district court found that all

of the elements of collateral estoppel were present, barring

Ramallo's attempt to litigate in its second action the same issue

that was litigated in the first action: namely, whether the

newspapers' policy of requiring a sister company to produce and

print all corporate supplements inserted into El Nuevo Día and

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Primera Hora violated federal and local antitrust laws.

In its appellate brief, Ramallo barely addresses the

district court's decision regarding collateral estoppel. Ramallo

states that "[t]he District Court was wrong" but provides no

argument about why the district court was wrong. Generally, such

perfunctory treatment is insufficient to preserve an issue on

appeal. See Torres-Arroyo v. Rullan, 436 F.3d 1, 7(1st Cir. 2006)

(noting that "[g]auzy generalizations are manifestly insufficient

to preserve an issue for appellate review"); Ryan v. Royal Ins.

Co., 916 F.2d 731, 734 (1st Cir. 1990)(holding that "issues

adverted to on appeal in a perfunctory manner, unaccompanied by

some developed argumentation, are deemed to have been abandoned").

Although we could end our opinion here, we nonetheless

note that the record adequately supports the district court's

collateral estoppel decision. In its amended complaint in the

later lawsuit, Ramallo alleges that, by requiring AGP to print all

corporate supplements inserted into El Nuevo Día and Primera Hora,

the defendants engaged in anti-competitive conduct by unlawfully

tying the market for printing corporate supplements to the market

for delivering those supplements, by coercing Ramallo into having

its corporate supplements printed by AGP, by preventing Ramallo

from reaching the public reached by El Nuevo Día and Primera Hora,

and by monopolizing the printing and/or delivery markets. The

district court in Ramallo I considered the equivalent of each of

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these allegations in deciding the central issue of the case:

whether the newspapers' corporate supplement policy violated

federal and local antitrust laws. Finding no unlawful tying, no

coercion, and no monopolization, the Ramallo I court determined

that the newspapers' corporate supplement policy did not violate

the law as alleged by Ramallo. We see no material distinction

between the issues decided by the district court in Ramallo I and

the issues Ramallo seeks to have decided here.

While we acknowledge that changed circumstances may

defeat collateral estoppel, collateral estoppel remains appropriate

where the changed circumstances are not material. Scooper Dooper,

Inc. v. Kraftco Corp., 494 F.2d 840, 846 (3d Cir. 1974) (noting

that, "[c]arried to its extreme, the concept of changed factual

circumstances could totally undermine the application of collateral

estoppel [and] . . . [t]hus, where the changed circumstances are

not material, and therefore do not amount to controlling facts,

collateral estoppel remains applicable"); see also 18 Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and

Procedure § 4417 (2002) (suggesting that "[t]he possibility that

new facts may surround continuation of the same basic conduct

should not defeat preclusion unless it is shown that the new facts

are relevant under the legal rules that control the outcome").

Here, the district court found, and we agree, that the changed

circumstances alleged in Ramallo's second suit are legally

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insignificant and do not defeat collateral estoppel.

For example, it is immaterial that Ramallo sued in its

capacity as a printer for third parties in the first case and in

its capacity as an advertiser for its own company in the second.

The challenged policy did not change in any significant way from

one suit to the next;3 the policy was applied in the same manner

whether Ramallo acted in its capacity as a printer for others or as

a printer for itself; and the policy's legality under the antitrust

laws in no way turned on what role—printer or advertiser—Ramallo

was playing when it sought to insert a corporate supplement into El

Nuevo Día and Primera Hora.

The temporal difference between the events in the two

suits—namely, that the fortieth anniversary event triggering the

second case did not happen until after judgment in the first case

was entered—is likewise immaterial. Indeed, we have held in the

past that a plaintiff cannot avoid the bar of collateral estoppel

simply by suing a defendant for continuing the same conduct that

3
In its reply brief, Ramallo suggests that the corporate
supplement policy challenged in the first case was not the same as
the policy challenged in the second case. Instead, according to
Ramallo, the policy challenged in the second case was "completely
new," given that the sister printing company in the second case was
no longer Creative Minds (a unit of AGP) but was, instead, AGP
acting as an internal department of El Nuevo Día. Even if we were
to consider an argument raised for the first time in Ramallo's
reply brief, we deem the difference between the two printers—both
sister companies—insignificant to the ultimate issue decided. But
see Sandstrom v. ChemLawn Corp., 904F.2d 83, 87 (1st Cir. 1990)
(noting that a matter "pulled together for the first time in
[Plaintiff's] reply brief" was procedurally defaulted).

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was found to be lawful in a previous suit brought by the same

plaintiff. In Pignons S.A. de Mecanique v. Polaroid Corp., 701

F.2d 1 (1st Cir. 1983), for example, we considered two cases

involving the same parties and the same allegations of trademark

infringement, false advertising, and unfair competition. Because

the second case was based in part on advertisements placed by the

defendant after the first case was filed, the plaintiff sought to

avoid collateral estoppel by arguing that the issues in the second

case were different, being—as they were—based on advertisements and

products that post-dated the first case. We explained that, for

the plaintiff's argument to be successful, the new advertisements

and products would have to differ in some significant respect from

the old. Because they did not so differ, we upheld the dismissal

of the plaintiff's second case on collateral estoppel grounds.

Pignons, 701 F.2d at 2; see also Go-Videa Inc. v. Matsushita Elec.

Indus. Co., (In re Dual-Deck Video Cassette Recorder Antitrust

Litigation), 11 F.3d 1460, 1464 (9th Cir. 1993) (finding antitrust

claims barred by collateral estoppel where "[d]istinct conduct is

alleged only in the limited sense that every day is a new day, so

doing the same thing today as yesterday is distinct from what was

done yesterday"); Exhibitors Poster Exch., Inc. v. Nat'l Screen

Serv. Corp., 517 F.2d 110, 116 (5th Cir. 1975) (finding antitrust

claims barred by collateral estoppel where the plaintiff sued the

defendants for continuing a course of conduct that was previously

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adjudged lawful).

In its appellate brief, in a five-sentence section

addressing collateral estoppel, Ramallo suggests that, at the very

least, the district court erred in dismissing its discrimination,

refusal to deal, and essential facilities claims because none of

the issues related to those claims was raised or litigated in

Ramallo I. Relying on Pignons, 701 F.2 at 2 (explaining that new

theories cannot be used to circumvent collateral estoppel because

"one opportunity to litigate an issue fully and fairly is enough"),

the district court stated: "[C]ollateral estoppel still applies,

although [Ramallo] has advanced several new legal theories

challenging Defendants' corporate supplement printing policy."

Dist. Ct. Order at 15. The district court did not elaborate

further regarding Ramallo's "new legal theories," perhaps because

Ramallo's treatment of the collateral estoppel issue was just as

perfunctory before the district court as it has been before this

court. Indeed, Ramallo never suggested to the district court that

its discrimination, essential facilities, and refusal to deal

claims should survive the defendants' motion to dismiss on

collateral estoppel grounds. Instead, Ramallo argued that

collateral estoppel was not applicable because the issue in the

first case—applicability of the defendants' policy to Ramallo as a

printer for third parties—was materially different from the issue

in the second case—applicability of the defendants' policy to

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Ramallo as an advertiser and printer for itself.

Collateral estoppel has long been employed as a means of

ensuring repose. "Such repose is justified on the sound and

obvious principle of judicial policy that a losing litigant

deserves no rematch after a defeat fairly suffered, in adversarial

proceedings, on an issue identical in substance to the one he

subsequently seeks to raise." Astoria Federal Sav. and Loan Ass'n

v. Solimino, 501 U.S. 104, 107(1991). Here, seeking just such a

rematch, Ramallo alleges changed factual circumstances that are

immaterial to the underlying legal issue presented, offers new

theories in an attempt to resurrect the already-decided issue,

asserts arguments before this court that were left unsaid before

the district court, and develops in a reply brief what it neglected

to include in its initial brief. Under the circumstances, we are

unpersuaded that the district court erred in concluding that

collateral estoppel bars Ramallo's second bid to challenge the

defendants' corporate supplement policy.

C.

Finding no reason to disturb the district court's

collateral estoppel decision, we will not dwell on the matter of

res judicata. Briefly, we find that every claim raised in this

case was raised or could have been raised in Ramallo I.

III.

For the reasons explained above, we AFFIRM the judgment

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of the district court.

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