682 F.2d 37 (2nd Cir. 1982), 728, Lyell Theatre Corp. v. Loews Corp.

Docket Nº:728, Docket 81-7740.
Citation:682 F.2d 37
Party Name: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, Pa
Case Date:May 28, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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682 F.2d 37 (2nd Cir. 1982)

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.

No. 728, Docket 81-7740.

United States Court of Appeals, Second Circuit

May 28, 1982

Argued March 11, 1982.

Page 38

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.

CARDAMONE, Circuit Judge:

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

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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.

I

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...

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