Lyell Theatre Corp. v. Loews Corp.
| Decision Date | 28 May 1982 |
| Docket Number | D,No. 728,728 |
| Parties | 1982-2 Trade Cases 64,767 LYELL THEATRE CORPORATION and Martina Theatre Corporation, Plaintiffs, Lyell Theatre Corporation, Plaintiff-Appellant, v. LOEWS CORPORATION, Loews Doe Corporation, JoMor Enterprises, Inc., John R. Martina, Morris P. Slotnick, Columbia Pictures Industries, Inc., United Artists Corporation, Transamerica Corporation, Paramount Pictures Corporation, Paramount Film Distributing Corporation, Gulf and Western Industries, Inc., Metro-Goldwyn-Mayer, Inc., National General Pictures Corporation, National General Corporation, Cinerama Releasing Corporation and Cinerama, Inc., Defendants, Loews Corporation, Loews Doe Corporation, JoMor Enterprises, Inc., John R. Martina, Morris P. Slotnick, Columbia Pictures Industries, Inc., United Artists Corporation, Paramount Pictures Corporation, Paramount Film Distributing Corporation, Metro-Goldwyn-Mayer, Inc., National General Pictures Corporation, Cinerama Releasing Corporation and Cinerama Releasing Corporation and Cinerama, Inc., Defendants-Appellees. ocket 81-7740. |
| Court | U.S. Court of Appeals — Second Circuit |
Martin J. O'Donnell, Boston, Mass. (Cesari & McKenna, Boston, Mass., of counsel), for plaintiff-appellant.
Beryl Nusbaum, Rochester, N. Y. (Woods, Oviatt, Gilman, Sturman & Clarke, Donald W. O'Brien, Jr., Rochester, N. Y., of counsel), for defendants-appellees Loews Corp. and Loews Doe Corp.
James C. Gocker, Rochester, N. Y. (Harris, Beach, Wilcox, Rubin & Levey, Richard L. Smith, Rochester, N. Y., of counsel), for defendants-appellees JoMor Enterprises, Inc., John R. Martina and Morris P. Slotnick.
Frank Raichle, Buffalo, N. Y. (Raichle, Banning, Weiss & Halpern, Buffalo, N. Y., of counsel), for defendants-appellees Columbia Pictures Industries, Inc., United Artists Corp., Paramount Pictures Corp., Paramount Film Distributing Corp. and Metro-Goldwyn-Mayer, Inc.
Henry W. Killeen, III, Buffalo, N. Y. (Jaeckle, Fleischmann & Mugel, Buffalo, N. Y., of counsel), for defendants-appellees Nat. General Pictures Corp., Cinerama Releasing Corp. and Cinerama, Inc.
Before TIMBERS, NEWMAN and CARDAMONE, Circuit Judges.
After ten years of broken promises, inactivity and delay, the district court dismissed plaintiffs' complaint for failure to prosecute. We affirm, D.C., 91 F.R.D. 97, and write to make known our view on the appropriateness of the extreme sanction of dismissal.
Plaintiffs Lyell Theatre Corporation and Martina Theatre Corporation (Lyell Theatres) were motion picture exhibitors. At the time this action was instituted these corporations conducted business in Rochester, New York under the control and management of Charles Martina and his son Vincent. The defendants are either film distributors or film exhibitors who were in competition with the plaintiffs. The exhibitor defendants are: Loews Corporation and its Rochester operating subsidiary Loews Doe Corporation; Jo-Mor Enterprises, Inc.; and Jo-Mor's joint owners and managers, John R. Martina and Morris P. Slotnick. The distributor defendants are nationally known companies and include: Columbia Pictures Industries, Inc.; Transamerica Corporation and its wholly-owned subsidiary United Artists Corporation; Paramount Pictures Corporation, Paramount Film Distributing Corporation, and their parent company Gulf & Western Industries, Inc.; National General Pictures Corporation and its parent National General Corporation; Cinerama, Inc. and its wholly-owned subsidiary Cinerama Releasing Corporation; and Metro-Goldwyn-Mayer, Inc. During the course of the action the parties agreed to dismiss all claims against National General Corporation, Transamerica Corporation, and Gulf & Western Industries, Inc.; the remaining defendants are the appellees.
This action was commenced on December 16, 1971 when plaintiffs filed a complaint which charged the defendants with violating antitrust laws by conspiring to restrain and monopolize trade in the distribution of motion pictures in the Rochester area. In particular, the complaint alleged that the distributors discriminated against plaintiffs by refusing to lease them films until after the exhibitor defendants had rejected the pictures and by charging these competitors lower film rental fees.
It is fair to conclude from the record that during 1972 and 1973 plaintiffs progressed their suit, as is their obligation, in an expeditious and timely fashion. After 1973, however, whatever initiative had previously been shown evaporated. Inaction and lethargy became the rule as this case meandered slowly downhill to its eventual demise. Other than the substitution of new counsel for plaintiffs on February 25, nothing was done in the year 1974. Plaintiffs' new counsel, Lavin, moved successfully on January 15, 1975 to file a supplemental complaint extending the period of defendants' alleged antitrust activities to June 1974 and increasing damages. In March 1975 plaintiffs served supplemental interrogatories on defendants.
For over two years there was no activity; plaintiffs did nothing to move this case during the last nine months of 1975, the entire year of 1976, and the first six months of 1977. Some action finally occurred only because a district judge fortuitously happened upon this now dormant Rochester suit while reviewing the status of a companion case pending in Buffalo, New York. As a result of his discovery, Judge Curtin noticed a meeting of all the lawyers for June 29, 1977. Lavin responded that he no longer represented plaintiffs. When the meeting convened no one appeared for Lyell Theatres. In early July Judge Curtin issued an order directing that plaintiffs obtain substitute counsel and file appropriate motions by September 16 or risk dismissal for failure to prosecute.
Plaintiffs' new counsel, O'Donnell and Sellers, appeared but did not file appropriate motions. A conference was held on September 30 at which time O'Donnell promised to submit an outline of his proposed course of action and to notice depositions of defendants. When he failed to live up to these commitments, defendants moved in November to dismiss the action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). The motion was denied and the matter referred to Magistrate Edmund F. Maxwell who directed that discovery be substantially completed by April 4, 1978.
In answer to interrogatories served upon them in December 1977 plaintiffs filed responses in March 1978. Defendants objected to these answers, deeming them inadequate. Various deadlines were set from April 1978 through August 1979 for supplemental responses to the interrogatories which were either not met or met with inadequate answers.
During this period the deposition of Vincent Martina began. Defendants sought computations he had made to substantiate the charges in the complaint. When he refused to supply them because of a claim of privilege, a dispute arose as to whether the 50-odd boxes of records he had made available to defendants were intelligibly arranged so as to permit an appropriate deposition of Martina.
Plaintiffs' counsel O'Donnell then offered to prepare summary sheets which would capsulize the factual basis for plaintiffs' claims. As a result of this representation the Magistrate moved the deadline for discovery ahead from August to October 15, 1979 and then, later to the end of November. Despite repeated promises that the summaries would be completed and the postponement of the discovery deadline to March 31, 1980, no summaries were received until February 1980; even then they were not complete as to all defendants. This occurred even though the information to be summarized was supposedly readily retrievable, substantially the same as that previously compiled by Martina, and the very essence of plaintiffs' proof in this now eight year old lawsuit. On plaintiffs' failure to observe its commitment regarding the summaries, the action stalled and-like a needle on a broken record-never really progressed. Thus, the denouement of this litigation was set.
The deposition of Martina was once again adjourned for him to go on vacation. A new date of March 24 was scheduled with O'Donnell's assurance that the summaries would be provided one week in advance. When this promise was not honored, defendants moved to dismiss pursuant to Fed.R.Civ.P. 37.
On the return date of the motion only some of the promised summaries were furnished. Defendants pressed their motion and the Magistrate determined that plaintiffs were primarily responsible for the delay. Later, Judge Curtin reviewed the entire case from the inception of the lawsuit and granted defendant's motion to dismiss pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure. An order of dismissal was entered on August 4, 1981.
Plaintiffs filed a motion for reconsideration on August 13. After hearing Martina, an attorney, argue on his own behalf that the dismissal was unwarranted, Judge Curtin denied reconsideration on September 29. He noted that the excuses asserted by Martina at oral argument were not reflected in the record or raised at any time prior to dismissal and that there was no explanation for failure to notify the court of these potentially mitigating factors. He concluded that "(p)laintiffs have not demonstrated any grounds which would entitle them to relief from my order pursuant to Rule 60(b) of the Federal Rules of Civil Procedure." Only Lyell Theatre Corporation and not Martina Theatre Corporation filed a Notice of Appeal on October 9, 1981 "from the Order dismissing this action entered in this action on the 29th day of September, 1981."
We turn first to appellees' argument that this appeal should be dismissed because the notice of appeal was not timely filed. Subdivision (1) of Rule 4(a) of the Federal Rules of Appellate Procedure provides that the notice of appeal in a civil case where appeal is taken as of right shall be filed...
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