Admiral Theatre Corp. v. Douglas Theatre Co.
| Decision Date | 24 August 1977 |
| Docket Number | Civ. No. 74-0-82. |
| Citation | 437 F. Supp. 1268 |
| Parties | ADMIRAL THEATRE CORPORATION, a Nebraska Corporation, Benson Drive-In Corp., a Nebraska Corporation, and the Chief Theatre Corp., a Nebraska Corporation, Plaintiffs, v. The DOUGLAS THEATRE COMPANY, a corporation, Russell Brehm, an Individual, J. S. B. Amusement Corporation of Nebraska, a corporation, Sarge Dubinsky, an Individual, Irwin Dubinsky, an Individual, Mann Theatres Corporation of California, a corporation, Theodore Mann, an Individual, American Multi-Cinema, Inc., a corporation, Stanley Durwood, an Individual, Cooper Theatres, Inc., a corporation, Elwood Thompson, an Individual, Herman Hallberg, an Individual, Northwest Cinema Theatre Corporation, a corporation, Melvin Lebewitz, an Individual, Exhibitor-Defendants, and also, Universal Pictures, a corporation, Paramount Pictures, a corporation, Warner Brothers Distributing Corporation, a corporation, Columbia Pictures Industries, Inc., a corporation, Allied Artists Pictures Corporation, a corporation, Twentieth Century-Fox Film Corporation, a corporation, Avco Embassy Pictures Corporation, a corporation, Distributor-Defendants. |
| Court | U.S. District Court — District of Nebraska |
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Richard K. Lydick, Zweiback & Laughlin, Omaha, Neb., Earl A. Jinkinson, Robert Foster, Greg Murray, Winston & Strawn, Chicago, Ill., for Admiral Theatre Corp., Benson Drive-In Corp. and the Chief Theatre Corp., plaintiffs.
Leo Eisenstatt, Steven M. Luttbeg, Eisenstatt, Higgins, Kinnamon & Okun, Omaha, Neb., Alan K. Benjamin, Bagby, Benjamin & Arnold, Kansas City, Mo., for The Douglas Theatre Co., Russell Brehm, J.S.B. Amusement Corp. of Nebraska, Sarge Dubinsky, Irwin Dubinsky, American Multi-Cinema, Inc., and Stanley Durwood, exhibitor-defendants.
Bernard R. Kaufman, C/O Mann Theatres Corp., Los Angeles, Cal., Richard A. Knudsen, Kenneth C. Stephan, Knudsen, Berkheimer, Endacott & Beam, Lincoln, Neb., for Mann Theatres Corp. of California, Theodore Mann, Cooper Theatres, Inc., Elwood Thompson and Herman Hallberg, exhibitor-defendants.
Patrick W. Healey, John Tavlin, Healey, Healey, Brown, Wieland & Burchard, Lincoln, Neb., D. Randall Blohm, Minneapolis, Minn., for Northwest Cinema Theatre Corp., and Melvin Lebewitz, exhibitor-defendants.
William E. Morrow, Jr., Richard N. Janney, Donald Buresh, Swarr, May, Smith & Andersen, Omaha, Neb., for Universal Pictures, Paramount Pictures, Warner Brothers Distributing Corp., Columbia Pictures Industries, Inc., Allied Artists Pictures Corp., Twentieth Century-Fox Film Corp., and Avco Embassy Pictures Corp., distributor-defendants.
MEMORANDUM IN SUPPORT OF ORDER OF DIRECTED VERDICT
This is an action by motion picture theatre corporations against motion picture distributors and exhibitors to recover damages for, and obtain injunctive relief from, alleged violations of Sections 1 and 2 of the Sherman Act.1 Plaintiffs' complaint alleges that between March 15, 1970 and March 15, 1974 there existed in the Omaha, Nebraska-Council Bluffs, Iowa market area an overall conspiratorial arrangement, between and among all distributor and exhibitor defendants, which unlawfully interfered with plaintiffs' ability to obtain first-run motion pictures for their Omaha theatres. Jurisdiction is predicated upon Sections 4 and 16 of the Clayton Act and are not in dispute.2
At this stage of the proceedings, with plaintiffs having rested their case, there remain pending before this Court several motions. More specifically, these motions include (1) defendants' motions to disqualify plaintiffs' expert and preclude said expert's testimony, filed July 18, 1977; (2) defendants' motions for mistrial, filed July 18, 1977; (3) defendants' motions for directed verdict, filed July 21, 1977; and (4) plaintiffs' motion to admit evidence as to all defendants, filed August 3, 1977. Of primary concern to this Court are defendants' motions for directed verdict filed pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, and it is to these motions that this memorandum directs its focus. The Court, after thoroughly reviewing plaintiffs' evidence and the parties' written arguments, has concluded that the motions for directed verdict are of merit and must be sustained in their entirety. With these motions sustained, all other pending motions, only briefly mentioned herein, are rendered moot.
The Court, prior to addressing the motions for directed verdict, digresses to note the historical development of this case. Such background places the present ruling in its proper context and further suggests an underlying reason for the inability of plaintiffs' case to survive directed verdict motions.
Plaintiffs filed their complaint in the United States District Court for the District of Nebraska on March 15, 1974. Nearly three years later, on January 17, 1977, this Court, pursuant to 28 U.S.C. § 292(b), was designated by the Chief Judge of the United States Circuit Court of Appeals for the Eighth Circuit to complete the processing and trying of plaintiffs' cause of action. This Court, on January 28, 1977, accordingly ordered that all parties were to appear for a final pretrial conference on February 22, 1977. At that pretrial conference, it became apparent that the lawsuit and attendant discovery proceedings, for whatever reason, had been essentially stalled for almost a year. Without assessing blame for the inaction, the Court, attempting to ensure justice for all party litigants, adjusted its schedule and permitted the plaintiffs additional time to conduct further discovery. While the scope of plaintiffs' discovery requests were necessarily limited, both in fairness to the defendants and so as to complete the trial within the Court's out-of-district time designation, they were given considerable latitude in their exploration of defendants' alleged conspiratorial activities. Defendants' motions to limit proof at trial to those first-run films upon which plaintiffs had made demand were overruled, and plaintiffs were confined only to first-run films released in the Omaha-Council Bluffs market area between March 15, 1970 and March 15, 1974.
After these rulings, which were filed in March of 1977, the proceedings were marked by plaintiffs' failure to meet Court imposed deadlines and to take full advantage of those further discovery opportunities that had been permitted. The Court does not herein raise plaintiffs' dilatoriness and inadequate trial preparation, which the record fully documents and which in itself would have been sufficient grounds to dismiss the case, for the purpose of coloring or lending support to its present ruling; rather, it is to suggest that a contributing reason, if not indeed a major reason, for plaintiffs' inability to survive directed verdict motions is that the foundation upon which they attempted to build their case was incomplete and unsound. For that, and the case's subsequent collapse, plaintiffs have only themselves to blame.
In considering defendants' motions for directed verdict, the Court, before appraising the legal contentions, reviewed plaintiffs' evidence and has determined that the following enumerated facts are not in dispute or are facts upon which reasonable persons would not disagree. See Fed.R. Civ.P. 50(a); 5A Moore's Federal Practice ¶ 50.021. A few of these fact enumerations are of a descriptive nature, seeking merely to identify controverted evidence that plaintiffs undeniably offered in support of their case.
1. The plaintiffs are three Nebraska corporations which owned theatres and exhibited first-run motion pictures in the Omaha, Nebraska-Council Bluffs, Iowa, market during the time period in question, March 15, 1970 to March 15, 1974. Specifically, plaintiffs, whose exhibition of motion pictures was confined to Omaha, are known as the Admiral Theatre Corporation, the Chief Theatre Corporation, and the Benson Drive-In Corporation, and said plaintiffs owned and operated the Admiral Theatre, the Chief Theatre, and the Skyview Drive-In, respectively.
2. Plaintiffs are incorporated in the State of Nebraska, with all stock throughout the period being owned by Ralph Blank or members of his immediate family. Ralph Blank, his wife, Geraldine, and his son, Robert, all participated in the operation of plaintiff theatres during the period between March 15, 1970 and March 15, 1974. While Ralph Blank was the principal operating officer for all three theatres, Robert Blank's responsibilities increased after his father's heart attack in the spring of 1971. Since the death of Ralph Blank in November, 1976, Robert Blank has become the principal operating officer for the Admiral and Skyview theatres.
3. The Admiral Theatre, a single screen, indoor motion picture theatre which is located at Fortieth and Farnam Streets in Omaha, was built and opened by Ralph Blank in approximately 1940. It is situated in a residential and light commercial area, approximately one and one-half miles from the central business district of downtown Omaha. During the relevant time period, the Admiral was a first-run motion picture theatre and had a seating capacity ranging from 866 to approximately 966.
4. The Chief Theatre was built and opened by Ralph Blank during 1945. Located on South 24th Street, between K and L Streets, a commercial area approximately three miles from the center of downtown Omaha, it too was a single screen, first-run indoor motion picture theatre. The Chief had a seating capacity in excess of 1200 during the relevant period. Between December 20, 1971 and July 15, 1972, the Chief was closed for repairs following a disturbance during a movie in which the theatre was damaged. The Chief was closed permanently on December 10, 1972 due to substantial operating losses. In commenting upon the closing of the Chief Theatre, Robert Blank, in a...
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