Taylor v. Portland Paramount Corporation, 21334.
Citation | 383 F.2d 634 |
Decision Date | 19 October 1967 |
Docket Number | No. 21334.,21334. |
Parties | Elizabeth TAYLOR, Appellant, v. PORTLAND PARAMOUNT CORPORATION, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Bruce M. Ramer, Gang, Tyre, Rudin & Brown, Los Angeles, Cal., Kell & Alterman, Portland, Or., for appellant.
Clifford N. Carlsen, Jr., King, Miller, Anderson, Nash & Yerke, Portland, Or., for appellee.
Before POPE, JERTBERG and DUNIWAY, Circuit Judges.
Taylor appeals under 28 U.S.C. § 1292 (b) from an order denying her motion to quash service of summons upon her. We reverse. The opinion of the District Court is reported in Portland Paramount Corp. v. Twentieth Century-Fox Film Corp., D.Or., 1966, 258 F.Supp. 962, and this opinion assumes that the reader is familiar with it.
Two questions are presented, both involving the Oregon "long arm" statute, ORS § 14.035, enacted in 1963. These are, whether Taylor's activities bring her within the terms of the statute, and whether, if they do, she is thereby deprived of due process as guaranteed by the Fourteenth Amendment to the Constitution of the United States, by being required to defend this action in Oregon.
The Oregon long arm statute provides, in pertinent part:
The trial court was of the opinion that the allegations of the complaint showed, on Taylor's part, the "commission of a tortious act within" Oregon. The court also thought that there was shown the "transaction of * * * business within" Oregon by Taylor, but did not base its decision on that ground. Here, appellee seeks to sustain the order on both grounds.
We first restate the facts, as we are not entirely satisfied with the trial court's statement of them. Taylor was served with process in California. She is not a resident or citizen of Oregon and has never been there. The case against her is stated in the third and fourth causes of action in the complaint. (The first two are against Fox1 alone).
The third cause of action sounds in tort. The allegations are as follows: In 1960, Taylor and Fox entered into a joint venture to produce and distribute the proposed film "Cleopatra." Taylor was to and did play the title role, and one Richard Burton was to and did act in a co-starring role. Fox was to and did distribute the picture. Taylor was to receive a share of the receipts from distribution. Fox, in 1963, made a contract with appellee,2 licensing the latter to show the picture, and received from appellee a non-returnable film rental of $175,000. As a result, appellee acquired valuable exhibition property rights in the picture. Taylor knew this, and knew that those rights directly depended on the success of the picture in attracting the public to see it. The complaint continues:
Damages are alleged to exceed $40,000.
The fourth cause of action sounds in contract. It repeats the same allegations as to the joint venture for production and distribution of the picture. It then alleges that the agreements made by Taylor and Fox were intended to be for the direct benefit of exhibitors, including appellee, and included provisions establishing (paragraph II):
It is then alleged:
"Upon information and belief, defendant Elizabeth Taylor has willfully breached the express and implied terms, conditions, covenants and warranties of her joint venture or joint ventures and contract or contracts with defendant Fox as set out in paragraph II of this fourth cause of action."
In support of her motion to dismiss for lack of jurisdiction of her person, Taylor filed an affidavit, alleging that she is not a resident or citizen of Oregon, that she has never, in person or through an agent, transacted any business in Oregon, that she has never been in Oregon, and that she never, in person or by agent, entered into a joint venture contract to produce and distribute the picture "Cleopatra."
The actual contracts were also produced and received in evidence. This is what they show:
On August 11, 1960, Fox, by an elaborate written contract, employed Taylor to play the leading role in the projected film "Cleopatra." On August 24, 1960, three written contracts were made. Two Swiss corporations, MCL (which for the purpose of the motion is Taylor) and WAL WA, entered into a joint venture whereby they agreed to participate in producing the film. This joint venture was to terminate upon delivery of the photoplay to Fox. The agreement contemplated the making of the other two agreements. The second agreement of the same date (not in the record, but referred to in the documents) was between Productions (Fox's British subsidiary)3 and the MCL-WALWA venture. It established a second joint venture between these three parties for the production of the film. This is shown by a later agreement between them of September 1, 1961, which is in the record and which supplements and modifies their August 24, 1960 agreement.
The third agreement of the same date, the distribution agreement, was between Fox, Productions and MCL-WALWA. By that agreement, Fox agreed to lend MCL-WALWA $2,500,000 to defray certain production costs, the loan to be secured by a note and a chattel mortgage of the photoplay, and to lend Productions sufficient additional moneys to produce the picture. Productions and MCL-WALWA granted to Fox "for all countries and territories throughout the world * * * the sole and exclusive right to print, reprint, publish, copy and/or vend the Photoplay * * * and to release, distribute, exhibit, sell, lease, rent, license, sublicense, reissue, exploit, advertise, and otherwise use and generally deal in and with the Photoplay. * * *" These rights, by additional provisions,...
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