Fifth & Walnut v. Loew's, Inc.

• Decision Date: 23 January 1948
• Citation: 76 F. Supp. 64
• Parties: FIFTH & WALNUT, Inc., et al. v. LOEW'S, Inc., et al.
• Court: U.S. District Court — Southern District of New York

76 F. Supp. 64

FIFTH & WALNUT, Inc., et al. v. LOEW'S, Inc., et al.

District Court, S. D. New York.

January 23, 1948.

Monroe E. Stein, of New York City (Rogge, Fabricant, Gordon & Goldman, of New York City, of counsel), for plaintiff.

Dwight, Harris, Koegel & Caskey, of New York City, for defendant Twentieth Century-Fox Film Corporation.

Gordon E. Youngman, of New York City, for defendant RKO Radio Pictures, Inc.

J. Robert Rubin, of New York City, for defendants Loew's Incorporated and Marcus Loew Booking Agency.

Austin C. Keough, of New York City, for defendant Paramount Pictures, Inc.

Robert W. Perkins, of New York City, for defendant Warner Bros. Pictures Distributing Corporation.

Schwartz & Frohlich, of New York City, for defendant Columbia Pictures Corporation.

O'Brien, Driscoll, Raftery & Lawler, of New York City, for defendants United Artists Corporation and United Artists Theatre Circuit, Inc.

Meyer H. Lavenstein, of New York City, for defendant Republic Pictures Corporation.

Charles D. Prutzman, of New York City, for defendant Universal Pictures Company, Inc.

John F. Caskey and Charles F. Young, both of New York City, of counsel, for defendants.

RYAN, District Judge.

All eleven defendants move to dismiss the complaint without prejudice.

The stated grounds of the motion are that "a fairer determination of the issues would be had, at greater convenience to this Court, to the parties and to the witnesses and personnel most directly concerned with this action, if the action were brought in Louisville, Kentucky in the District Court for the Western District of Kentucky."

This action is brought by plaintiffs under the "Sherman Act," 15 U.S.C.A. §§ 1 to 7, inclusive, and the "Clayton Act," 15 U.S.C.A. §§ 12 to 17, inclusive.

Plaintiff, Fifth and Walnut, Inc., a corporation of the Commonwealth of Kentucky, has its principal office in Louisville, Kentucky. Since December 10, 1943, it has leased and operated the National Theatre located at Fifth and Walnut Streets in Louisville. Plaintiff, Albert J. Hoffman, a resident of Indianapolis, Indiana, has owned the National Theatre since January 20, 1943, from which date to December 10, 1943 he operated the theatre at which time, while continuing in title to the fee, he leased the theatre to Fifth and Walnut, Inc.

All eleven defendants are engaged in the motion picture industry, as producers, distributors or exhibitors. Nine of the eleven defendants are described in the complaint as distrbutors. Five of these nine are incorporated under the laws of the State of Delaware — Loew's Incorporated, RKO Radio Pictures, Inc., Universal Pictures Company, Inc., United Artists Corporation and Republic Pictures Corporation; the remaining four — Paramount Pictures, Inc., Twentieth Century-Fox Film Corporation, Columbia Pictures Corporation and Warner Bros. Pictures Distributing Corp. — are incorporated under the laws of the State of New York. All nine distribute motion picture films throughout the United States and have their principal offices in New York City. Of the two remaining defendants, one — United Artists Theatre Circuit, Inc. — is a Maryland Corporation, and the other — Marcus Loew Booking Agency — is a New York corporation. The former owns Loew's United Artists Theatre and operates it in conjunction with Marcus Loew Booking Agency, a subsidiary of the defendant, Loew's Incorporated. It is not disputed that all eleven defendants irrespective of the State of their origin transact business and maintain offices in New York City within this district.

The facts recited herein are alleged in the complaint and for the purposes of this motion only are deemed established by affidavits submitted.

The complaint alleges that defendants have conspired and agreed together to deprive and have deprived plaintiffs of the right to negotiate for the exhibition and showing of "first run" pictures at the National Theatre in Louisville.

The defendants in their answers deny this charge. They allege that their refusal to license pictures for first run at this theatre was prompted solely by economic reasons and sound legitimate business considerations. They say, in explaining any apparent uniformity and similarity in conduct, that they individually and separately arrived at the same conclusion —that each of them would make more money and realize higher rental if his respective pictures were licensed first run to theatres other than the National. As an affirmative defense defendants plead a one-year statute of limitations effective in Kentucky. Their moving affidavits concerning this defense makes the following comments (pp. 14-15):

"It is very well established that there is no federal statute of limitations applicable to anti-trust actions brought under the Federal Laws. Therefore, the local statute of limitations should govern this question."

"However, a very important subsidiary question has been raised by the answers of these defendants and will be raised at the trial, namely, the question of the Statute of Limitations that is applicable here."

And, defendants seek to invoke the doctrine of forum non conveniens.

Entering upon a determination of the merits of the motion the court is mindful of the admonition, "But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843.

At the very outset the court is led to a consideration of the historical facts of this litigation. The complaint herein was filed on July 11, 1946 and defendants were served in this district within a day or two thereafter. By stipulations, defendants' time to answer was extended and issue was joined by the service of their answers on September 26, 1946. Notice of this motion was first given plaintiffs on May 17, 1947; it was returnable on May 23, 1947 at which time it was marked "off" the calendar by consent of both sides. It was not returned to the motion calendar and submitted for consideration until the December, 1947, Term.

The notice of motion was served ten months after the commencement of the action and eight months after the issue was joined. It was not brought on for submission to the court until seven months later, or almost fifteen months after service of answer. This long delay does not impress one as being the course usually taken by defendants who feel that they have been vexed, harassed or oppressed by plaintiffs' choice of an inconvenient forum. It is not the spontaneous hue and outcry of persons who have been outraged.

The court does not adopt plaintiffs' interpretation of Rule 12(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, that this motion should be denied because not made before answer. The objection of forum non conveniens is not a defense to improper venue, which must be asserted by preliminary motion or answer. It is simply a motion which may be addressed to the discretion of the court at any time. Weiss et al. v. Routh et al., 2 Cir., 149 F.2d 193, 159 A.L.R. 658; Burdick v. Freeman, 120 N.Y. 420, 24 N.E. 949; Collard v. Beach, 81 App.Div. 582, 81 N.Y.S. 619. It may be raised after as well as before answer, but the objection should be taken with reasonable and appropriate promptness. An examination of the Gulf Oil case, supra, and Koster v. Lumbermens Mutual Co., 330 U.S. 518, 67 S.Ct. 828 shows that the defendants in those actions objected to the forum before answer.

Defendants cannot answer, take depositions of plaintiffs, permit plaintiffs to examine witnesses on deposition, have plaintiffs incur pre-trial expenses in excess of $7500, (out of which $690 costs were paid to each of defendants' counsel to reimburse them for expenses on the taking of depositions in Kentucky), and prepare for trial and, finally after many months have passed, raise an objection to the forum for the first time. Such inaction does not prompt the court to exercise discretion in their favor.

The court is not impressed by defendants' complaint of the added inconvenience and cost of securing the attendance of expert witnesses in New York over what it would incur in having the same witnesses testify in Kentucky. "Furthermore, the plea of inconvenience loses some of its persuasiveness in the mouth of highly solvent defendant, particularly one charged with personal wrongdoing." Harvard Law Review, Vol. 60, p. 933. Cf. dissent of Mr. Justice Cardozo in Rogers v. Guaranty Trust Co., 288 U.S. 123, 151, 53 S.Ct. 295, 77 L.Ed. 652, 89 A.L.R. 720, and Mr. Justice Jackson concurring in Miles v. Illinois Central R. R., 315 U.S. 698, 706-708, 62 S.Ct. 827, 86 L.Ed. 1129, 146 A.L.R. 1104. The court cannot find that the forum selected by plaintiffs is inconvenient to the point of oppression.

The defense of the Kentucky statute of limitations pleaded in the answer of defendants is as they describe it "a very important subsidiary question," and particularly so on this application.

By the law of the State of Kentucky, a one-year statute of limitations, KRS 413.140(c), governs this action. The plaintiffs rely in large measure, to meet this pleaded defense, on the Act of Congress passed October 10, 1942, c. 589, 56 Stat. 781, as amended June 30, 1945, c. 213, 59 Stat. 306, 15 U.S.C.A. § 16 note, which plaintiffs contend and it seems rightly so suspended the running of the statute of limitations of any violation of the anti-trust laws until June 30, 1946.

Plaintiffs contend that if this action has to be recommenced in Kentucky after June 30, 1947 (as it will have to be if at all in the event the motion is granted), plaintiffs will lose the benefit of these statutes. The defendants to counter this objection now suggest in a supplemental memorandum submitted in support of the motion that:

"If this court should fear that the granting of this motion would result in plaintiffs' being barred by the applicable statute of limitations in the forum where the action is...