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North American Catholic Educational Programming Foundation, Inc. v. Womble

August 24, 2012


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge



This case arises out of plaintiff North American Catholic Education Programming Foundation, Inc.'s ("NACEPF") dissatisfaction with the legal services and advice that co-defendants Howard J. Barr and Womble, Carlyle, Sandridge & Rice, PLLC ("Womble") have provided to NACEPF. The events date back to 1992, and concern defendants' representation of NACEPF in matters relating to educational television channel licensure.

Before the Court are two related motions. First is the defendants' Motion for Partial Judgment on the Pleadings, claiming that three of plaintiff's four causes of action duplicate plaintiff's legal malpractice claim. Second is plaintiff's Motion to Amend Complaint.*fn1 Plaintiff claims its amended complaint addresses the issues raised by defendants' motion, thus making defendants' motion moot. Because Counts II, III and IV in the original complaint duplicate plaintiff's legal malpractice claim, the Court will grant defendants their Motion for Partial Judgment on the Pleadings. Furthermore, because plaintiff has or should have long been aware of the information underlying the proposed amendment, amendment would delay trial and prejudice defendants, and there is a dilatory motive for the amendment, the Court will deny plaintiff's Motion to Amend Complaint.


NACEPF is a non-profit organization providing educational broadcasting programming. NACEPF distributes its programming to schools and correctional facilities through numerous Educational Broadcasting Service ("EBS," formerly known as Instructional Television Fixed Service ("ITFS")) stations throughout the country. EBS channels occupy a portion of the broadcast spectrum reserved by the Federal Communications Commission ("FCC") for educational programming.*fn2 The FCC reviews and grants licenses for these reserved educational channels. Each applicant has to meet certain requirements concerning the quality and quantity of its educational programming. 47 C.F.R. § 74.932 (1993). Each institution can hold licenses for up to four channels in a particular area, 47 C.F.R. § 74.902(d)(1) (1994), but the FCC may waive this "four-channel rule" upon a showing of good cause. 47 C.F.R. § 1.3 (1994); see also Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir 1990). NACEPF holds several of these licenses, and community colleges and school districts frequently use these channels to distribute training and educational programming to classrooms.

Over the years, the FCC has changed how it evaluates applications and awards licenses for ITFS/EBS channels. There are a limited number of dedicated educational channels, so the FCC has developed procedures to decide between competing "mutually exclusive" applicants. Prior to 1998, as channels became available, the FCC gave public notice of windows during which it would accept new applications. 47 C.F.R. § 74.911(c) (1993). If the FCC received more qualified applicants than available channels in a particular geographic market, the FCC resolved the mutually exclusive applications through a comparative point system. The system weighed such factors as ties to the local community, accreditation, quantity and diversity of educational programming, and compliance with the four-channel rule. An applicant can receive a maximum of twelve points, and the applicant with the most points would receive the channels.

47 C.F.R § 74.913 (1993).

In August 1998, the FCC announced it would transition from the point system to deciding mutually exclusive applications through a competitive auction. In re Implementation of §309(j) of the Communications Act -- Competitive Bidding for Commercial Broadcast & Instructional Television Fixed Serv. Licenses, 13 F.C.C.R. 15920, 15999--16001 (1998). In announcing this change, the FCC allowed mutually exclusive applicants an opportunity to settle their competing applications. Id. During this "settlement period," the mutually exclusive applicants could negotiate and divide the available channels amongst themselves. If the settlement talks failed, the FCC would decide the pending mutually exclusive applications through the new competitive auction procedure. The auction procedure remains in place today. 47 U.S.C. § 309(j) (2006).

Dating back to at least 1992, Mr. Barr-then a partner of Pepper & Corazzini-had been representing NACEPF in its efforts to secure and retain licenses for ITFS/EBS channels.*fn3 From 1992 to 2006, the defendants represented NACEPF in a variety of communications regulatory matters. The plaintiff claims that during this period the defendants committed several instances of legal malpractice in connection with several licensure applications. In March 2006, NACEPF terminated Womble, as a result of this alleged malpractice. Womble promptly transferred is client files-some 30--40 bankers' boxes of documents-to NACEPF, which kept the files in a Rhode Island storage facility. See Pl.'s Reply to Defs.' Opp. to Mot. to Am. Compl. at 1.

In June 2009, plaintiff brought the instant suit, claiming legal malpractice, breach of contract, breach of implied duty of good faith and fair dealing, and breach of fiduciary duty. The plaintiff grouped its claims by the geographic markets affected. First, plaintiff alleges that defendants failed to timely file notice of appeal of a FCC denial of NACEPF's application for EBS channels in the Las Vegas market. Plaintiff's Complaint and Jury Demand ("Compl.") ¶¶ 20--30. Second, plaintiff alleges that defendants failed to file a renewal application for one of NACEPF's two Albuquerque, New Mexico licenses. Compl. ¶¶ 31--39. Third, plaintiff alleges that defendants failed to monitor adequately the status of the application and settlement agreements respecting licenses in the Toledo, Ohio market. Compl. ¶¶ 40--50. Fourth, plaintiff alleges that defendants failed to advise NACEPF about the legal significance of the settlement periods in relation to NACEPF's license applications in the Alamosa, Grand Junction, and Eureka markets. Compl. ¶¶ 51--60. Fifth and final, the plaintiff alleges that defendants had not detected and informed NACEPF of an erroneous dismissal of an EBS station application in the Swainsboro, Georgia market. Compl. ¶¶ 61--70.

On August 5, 2011, this Court granted defendants' Motion for Partial Summary Judgment, dismissing the claims relating to defendants' representation of NACEPF in the Las Vegas market.*fn4 N. Am. Catholic Educ. Programming Found., Inc. v. Womble, Caryle, Sandridge & Rice, PLLC, 800 F. Supp. 2d 239 (D.D.C. 2011) (Lamberth, C.J.). This Court found that plaintiff could not prove that the defendants' failure to file notice of appeal caused plaintiff harm, because plaintiff would not have prevailed in its appeal. NACEPF, 880 F. Supp. 2d at 251. For the remaining claims, the Court set the fact discovery cutoff for July 13, 2012 and trial for September 4, 2012. Order Grant. & Modifying Mot. for Scheduling Order (May 11, 2012).


A.Defendants' Motion for Partial Judgment on the Pleadings

Under Federal Rule of Civil Procedure 12(c), "a party may move for judgment on the pleadings.[a]fter the pleadings are closed-but early enough not to delay trial." A motion for judgment on the pleadings "shall be granted if the moving party demonstrates that no material fact is in dispute and that it is entitled to judgment as a matter of law." Stewart v. Evans, 275 F.3d 1126, 1132 (D.C. Cir. 2002) (citations and internal quotations omitted). "In considering a motion for judgment on the pleadings, the Court should 'accept as true the allegations in the opponent's pleadings' and ...

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