Delta Theaters v. Paramount Pictures, Civ. A. No. 3792.

• Court: U.S. District Court — Eastern District of Louisiana
• Writing for the Court: J. SKELLY WRIGHT
• Citation: 158 F. Supp. 644
• Docket Number: Civ. A. No. 3792.
• Decision Date: 16 January 1958
• Parties: DELTA THEATERS, Inc., Plaintiff, v. PARAMOUNT PICTURES, Inc., et al., Defendants.

158 F. Supp. 644

DELTA THEATERS, Inc., Plaintiff,
v.
PARAMOUNT PICTURES, Inc., et al., Defendants.

Civ. A. No. 3792.

United States District Court E. D. Louisiana, New Orleans Division.

January 16, 1958.

158 F. Supp. 645

Henican, James & Cleveland, C. Ellis Henican, Murray F. Cleveland, New Orleans, La., for plaintiff.

Chaffe, McCall, Phillips, Burke & Hopkins, Harry McCall, Gibbons Burke, New Orleans, La., E. Compton Timberlake, Marvin Ginsky, New York City, Phelps, Dunbar, Marks, Claverie & Sims, Ashton Phelps, New Orleans, La., E. C. Raftery, New York City, for defendants.

J. SKELLY WRIGHT, District Judge.

The plaintiff in this case is the owner and operator of an independent

158 F. Supp. 646

motion picture theater in New Orleans. Its complaint, based on Section 4 of the Clayton Act,¹ alleges a conspiracy, involving a major part of the nation's film industry, to destroy competition between plaintiff's theater and certain theaters, operated in the New Orleans area by some of the defendants, by excluding plaintiff from the market for first-run films of prime quality. This conspiracy is alleged to have continued since plaintiff's theater opened in 1947, and to have succeeded to the extent of causing serious losses in plaintiff's box office receipts. Defendants have filed a motion to strike, as time barred, the demand in damages for all years prior to one year before the filing of the complaint, asserting as their authority Articles 3536² and 3537³ of the Louisiana Civil Code. It is agreed that reference must be had to applicable state statutes of limitation⁴ because, at the time this action arose, the federal antitrust acts contained no limitation provision for damage suits.⁵

I.

In response to defendants' motion to strike, plaintiff suggests, first, that Article 3536, Louisiana Civil Code, relating to the prescription of "offenses and quasi offenses" in one year, does not apply to a treble damage antitrust suit since such an action is sui generis and therefore falls within Article 3544,⁶ the ten-year omnibus provision covering prescription of all personal actions not otherwise provided for in the Code. It is true that the antitrust suit is a statutory action with no exact equivalent in the common law. Consequently, the courts have experienced some difficulty in applying to it statutes of limitation which list specific types of common law actions.⁷ But the Louisiana Civil Code term, "offenses and quasi offenses," is, not a specific and exclusive, but a general term which embraces all "tort" actions, including the action for "injury to business."⁸ In federal decisions antitrust damage suits are usually described as "tort" actions.⁹

In this state of the law it would be arbitrary and unreasonable now to exclude this "tort" action from the general category of "offenses and quasi offenses." Moreover, the courts of this district¹⁰ and this circuit¹¹ have regularly applied Article 3536 to treble damage suits under the anti-trust laws. Although the point may never have been strongly urged in these prior cases, this Court can see no reason for changing the rule, and therefore the one-year limit applies.

158 F. Supp. 647

II.

Secondly, the plaintiff argues that even if this suit is a "tort" action, plaintiff may waive the tort and elect to sue in quasi contract, thereby substituting the ten-year limit of Article 3544 for the one-year limit of Article 3536. In its complaint the plaintiff has done everything necessary to exercise its right of election, if such a right exists in the present circumstances. There is some authority in the numerous Louisiana cases cited¹² by the plaintiff to the effect that where the subject matter of the suit is specific property, or its value, or other sum certain which it would be unjust for the defendant to retain, an action in quasi contract may be elected. In the present case the plaintiff seeks to recover for "losses in decreased box office receipts" and for injury to its "prestige, standing and good will." This is not a demand for an item of property or a sum of money which was once in plaintiff's and is now in defendants' possession. Read it as one will, the complaint states only a claim for unliquidated damages. Although the defendants may have benefited from their illegal practices, no exact correspondence is alleged, or could be alleged, between losses suffered and benefits received.

No case has been cited which recognizes the right of election of remedies in these circumstances except Don George, Inc., v. Paramount Pictures, D.C., 111 F.Supp. 458.¹³ That opinion makes no reference to the lengthy analysis of this right to elect found in Iberville Land Co. v. Amerada Petroleum Corporation, 5 Cir., 141 F.2d 384. This last decision reviews many of the cases cited by the plaintiff herein and leaves no doubt as to the Fifth Circuit Court's view that this right is limited to actions for the recovery of specific property or sums certain. While the limits of the right of election are not too precisely defined in the Louisiana decisions, it nevertheless appears to this Court that this case falls well beyond them.

III.

Thirdly, the plaintiff argues that where the actions of the defendants constitute a continuing conspiracy for a single purpose, the applicable statute of limitation does not begin to run against the plaintiff's single cause of action as long as the conspiracy continues. Plaintiff alleges that the defendants' conspiracy against it has continued from the time plaintiff's theater opened ten years ago to the present, with the single purpose of eliminating plaintiff from competition as an exhibitor of first-run films of prime quality. Plaintiff therefore asserts a right to recover damages for the entire period up to the time of filing the complaint herein. The contention seems to be, not that the statute of limitation is suspended or tolled, but that it does not apply at all in these circumstances until the defendants cease their conspiracy.

According to the usual rules, the statute of limitation would begin to run whenever the plaintiff's cause of action "accrued," and if the facts herein pleaded constitute a single cause of action, the statute of limitation would begin to run on the entire cause either from the first impact of the conspiracy or from the last. Under this theory of the case, the present cause of action would have been barred nine years ago or it would not yet have accrued. To avoid this result, plaintiff asserts that the statute of limitations and the principles of accrual of a cause of action do not apply to a continuing conspiracy; that the plaintiff may sue on any part of its claim at any time during the conspiracy, but that the defendant cannot take advantage of the statute of limitations until the conspiracy ceases.

In support of this theory, plaintiff has cited a number of persuasive

158 F. Supp. 648

Louisiana cases,¹⁴ but they do not apply. This issue is a matter of federal, not state, law. "In determining whether a cause of action has accrued, the law which governs is the law of the jurisdiction which gives the cause of action, not the law which supplies the applicable period of limitation. Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 85 L.Ed. 605. Therefore, in determining when this plaintiff's causes of action accrued, the law which governs is the law of the United States which gives the private right to sue for damages suffered from violations of...