Cinema Amusements v. Loew's, Inc.

• Decision Date: 10 June 1949
• Docket Number: Civ. A. No. 891.
• Citation: 85 F. Supp. 319
• Parties: CINEMA AMUSEMENTS, Inc., v. LOEW'S, Inc., et al.
• Court: U.S. District Court — District of Delaware

85 F. Supp. 319

CINEMA AMUSEMENTS, Inc., v. LOEW'S, Inc., et al.

Civ. A. No. 891.

United States District Court D. Delaware.

June 10, 1949.

John Van Brunt, Jr. (Killoran & Van Brunt), of Wilmington, Del., and Thurman Arnold and L. A. Nikoloric (Arnold, Fortas & Porter) of Washington, D. C., for plaintiff.

Richard F. Corroon (Southerland, Berl & Potter), of Wilmington, Del., and Richard P. Heppner, Roy W. McDonald and C. Stanley Thompson (Donovan, Leisure, Newton, Lumbard & Irvine), of New York City, for defendants Loew's, Inc., and RKO Pictures, Inc.

Daniel O. Hastings and Ayres J. Stockly (Hastings, Stockly, Walz & Wise), of Wilmington, Del., for defendant Twentieth Century-Fox Film Corporation.

RODNEY, District Judge.

The nature of this suit was indicated in a previous opinion upon objections to interrogatories. See Cinema Amusements v. Loew's, Inc., et al., D.C.Del., 1947, 7 F.R.D. 318. Subsequent thereto both parties have made certain motions. Plaintiff has moved under Rule 15(d), Federal Rules of Civil Procedure, 28 U.S.C.A., for leave to serve and file a supplemental complaint. Defendants have moved under Rule 30(b) to vacate or modify a notice of the taking of certain depositions made by plaintiff.

Subsequent to the above motions but prior to their disposition by the court, the defendants moved pursuant to 28 U.S. C.A. § 1404(a) to transfer this action to the United States District Court for the District of Colorado. Disposition of the previous motions mentioned above has been withheld because if the defendants' motion to transfer were granted it would seem preferable that such motions be determined by the court trying the case. The disposition herein of the motion to transfer therefore renders unnecessary any further consideration by this court of the previous motions.

Plaintiff, suing civilly for treble damages under the Sherman Anti-Trust Act, 15 U.S. C.A. §§ 1-7, 15 note, and the Clayton Act, 15 U.S.C.A. § 12 et seq., is an independent exhibitor of motion pictures in Denver, Colorado, operating in particular in that city the Broadway Theatre. Plaintiff substantially alleges that defendants, along with other major producer-distributors, have unlawfully conspired and combined to monopolize the exhibition of all desirable feature motion pictures in the United States by acquiring ownership or control of the vast majority of first and subsequent run theatres in the major cities of the United States and giving lower film rentals and priority of "runs" and exhibitions to such theatres and by using their power over copyrights to force independents to transfer control or profits of their theatres to the major producers. Plaintiff complains more particularly of the alleged conspiracy as it affects plaintiff in the operation of its Broadway Theatre in Denver, Colorado.

A jury trial has been demanded by plaintiff in accordance with the Rules. The action is at issue and counsel for both sides are apparently ready for early trial except for additional preparation which might be required by the disposition of the motion to serve and file the supplemental complaint and the motion to vacate or modify the taking of depositions.

The Supreme Court of the United States has determined, in United States v. National City Lines, 1949, 69 S.Ct. 955, that a civil action under the anti-trust laws, such as the instant action, may be transferred by the United States District Courts pursuant to 28 U.S.C.A. § 1404(a) upon a finding by such courts that the conditions of said section have been met. See also United States v. E. I. du Pont de Nemours & Co., D.C.D.C., 1949, 83 F.Supp. 233; Note, 58 Yale L.J. 482 (1949).

Section 1404(a) provides that "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C.A. § 1404(a).

Plaintiff does not dispute that the instant action could have been brought in the District of Colorado. Nor is it disputed by defendants that venue may be properly laid in the instant action here in the District of Delaware.

The venue section of the anti-trust laws provides that suit thereunder against a corporation "may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business." 15 U.S.C.A. § 22. Two of the corporate defendants are organized and existing under the laws of the State of Delaware and are found and transacting business in the State of Delaware. The other corporate defendant is organized and existing under the laws of the State of New York but is found and transacts business in the State of Delaware. All three of the corporate defendants transact business and may be found in the State of Colorado. Plaintiff is a corporation organized and existing under the laws of the State of Colorado.

If transfer is otherwise authorized and warranted, therefore, it is clear that the District of Colorado is a proper district to which this action may be transferred under Section 1404(a).

Plaintiff urges first that transfer may not be had where the corporate defendants are domiciled in the state of the forum or where plaintiff sues in a forum which satisfies all three alternative requirements of the venue section of the anti-trust laws¹ as to a majority of the defendants. Plaintiff's contention is predicated upon the assumption that Section 1404(a) is merely a codification of the doctrine of forum non conveniens, under which doctrine plaintiff urges its contentions are correct.

It is true that the criteria in Section 1404(a) justifying transfer are substantially identical with those which justify dismissal under the doctrine of forum non conveniens. Section 1404(a) authorizes transfers "for the convenience of parties and witnesses, in the interest of justice"; forum non conveniens required dismissal when the convenience of the parties and the ends of justice necessitated such action.² The Reviser's Notes to Section 1404(a) state that it was "drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper." And it has been judicially stated that consideration of a motion under Section 1040(a) by the district court would be had in the light of the rules for the application of the doctrine of forum non conveniens as laid down by the United States Supreme Court. See Schoen v. Mountain Producers Corp., 3 Cir., 170 F.2d 707, 715, certiorari denied, 336 U.S. 937, 69 S.Ct. 746.

While the substantial factors to be weighed in determining a motion under Section 1404(a) may be similar to those involved in a consideration of forum non conveniens, yet it seems clear that transfer under Section 1404(a) is something more than and somewhat different from dismissal under forum non conveniens. In the first place, the procedure to be followed in affirmatively invoking the two remedies is drastically different. Under Section 1404(a) a case is not dismissed but merely transferred to the more convenient forum; under forum non conveniens a case is dismissed and must be instituted anew in the more convenient forum, carrying with it the inherent and jeopardous hazard of being barred therein by the statute of limitations. The danger of having the action barred in such a manner was one of the principal reasons for Mr. Justice Black's dissent in Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 516, 67 S.Ct. 839, 91 L.Ed. 1055.

The doctrine of forum non conveniens has been held inapplicable to cases instituted under "special venue" statutes, such as actions arising under the Federal Employers' Liability Act, 45 U.S.C.A. § 151 et seq., and the anti-trust laws.³ Such types of cases may be transferred under Section 1404(a), however. Ex parte Collett, 1949, 69 S.Ct. 944; United States v. National City Lines, 1949, 69 S.Ct. 955. In this respect, then, the two remedies are also different.

Forum non conveniens still exists independently from Section 1404(a), at least in connection with those cases instituted in federal courts when the more convenient forum is in a foreign jurisdiction. De Sairigne v. Gould, D.C.S.D.N.Y.,1949, 83 F.Supp. 270. The court in the cited case observed that if forum non conveniens were limited by virtue of being codified into Section 1404(a) the federal courts would be stripped of their inherent power to refuse jurisdiction in such cases. See Canada Malting Co., Ltd. v. Paterson Steamships, Ltd., 1932, 285 U.S. 413, 422-423, 52 S.Ct. 413, 76 L.Ed. 837. In this respect, therefore, the two remedies are also independent of each other.

Even if Section 1404(a) were nothing more than a codification of forum non conveniens, this (Third) Circuit has held that transfer under Section 1404(a) may be had where a majority of the defendant corporations are domiciled in the forum. Schoen v. Mountain Producers Corp., 3 Cir., 1948, 170 F.2d 707, 714, certiorari denied, 336 U.S. 937, 69 S.Ct. 746.⁴ Indeed, following the Schoen decision this court has ordered transfer under Section 1404(a) in a case where the defendant corporation was domiciled in Delaware. Makela v. The Wilson Transit Co., 1949.⁵

Plaintiff relies principally upon Tivoli Realty, Inc. v. Interstate Circuit, Inc., et al., 5 Cir., 1948, 167 F.2d 155, certiorari denied, Interstate Circuit v. Tivoli Realty, Inc., 334 U.S. 837, 68 S.Ct. 1494, 92 L.Ed. 1762, for its other contention that forum non conveniens cannot be invoked when a majority of the defendants satisfy all three requirements of the "special venue" statute of the anti-trust laws, i. e., when a majority of the defendants are inhabitants of the forum, are found in the forum, and transact business in the forum. I am of the opinion that the cited case does not entirely support this contention. In the first place in the cited case the doctrine of forum non conveniens was not urged upon the court of the...