Fox v. Warner Bros. Pictures, Civ. A. No. 1293.

• Decision Date: 21 November 1950
• Docket Number: Civ. A. No. 1293.
• Citation: 95 F. Supp. 360
• Parties: FOX et al. v. WARNER BROS. PICTURES, Inc.
• Court: U.S. District Court — District of Delaware

95 F. Supp. 360

FOX et al. v. WARNER BROS. PICTURES, Inc.

Civ. A. No. 1293.

United States District Court D. Delaware.

November 21, 1950.

James R. Morford and William Marvel (Norford, Bennethum, Marvel & Cooch) of Wilmington, Del. for plaintiff.

S. Samuel Arsht (Morris, Steel, Nichols & Arsht) of Wilmington, Del., and Morris Wolf (Wolf, Block, Shorr & Solis-Cohen) of Philadelphia, Pa. for defendant.

RODNEY, District Judge.

This is a diversity suit brought by the plaintiffs, residents of New Jersey, against the defendant, a Delaware corporation. The damages claimed are far in excess of the jurisdictional amount and aggregate over $1,000,000.

The complaint sets out that the plaintiffs owned five theatre properties in New Jersey, viz., in Burlington, Riverside, Mt. Holly, Beverly and Swedesboro. All these theatres were rented on April 28, 1930, to the defendant for a period of 20 years with covenants that the lessee would keep the demised premises in good repair and replace any damaged or broken equipment.

The action, generally, is an action by the plaintiffs as landlords and reversioners seeking to recover damages because the defendant (1) failed to keep the premises in repair and make required replacements, and allowed the premises to fall into disrepair in breach of the covenants as lessee; and (2) that the defendant, being a tenant for years, wantonly and wilfully wasted the premises by wantonly and wilfully neglecting to repair the premises and to maintain, restore and replace the various fixtures and portions of the premises which required such action by the lessee.

The complaint embraces six causes of action. The first and second concern the theatres at Riverside and Mt. Holly; the third and fourth the theatres at Beverly and Swedesboro; and the fifth and sixth the theatre at Burlington.

The first, third and fifth causes of action are based as to the respective theatres upon alleged violations of covenants in the lease and these causes of action are not involved in any present question.

The second, fourth and sixth causes of action, as applying to the respective theatres, are brought by the plaintiffs as reversioners and are based upon charges of wilful and wanton waste by the tenant and are expressly founded on a New Jersey statute as set out in the footnote.¹ The damages sought are treble damages as authorized by that statute.

As to these causes of action two, four and six, the defendant has moved to dismiss under Federal Rules of Civil Procedure 12(b), 28 U.S.C.A., because (1) the court lacks jurisdiction over the subject matter of the alleged causes of action, and (2) the venue is improper for said alleged causes of action.

I shall first consider the question of jurisdiction. It is insisted for the defendant that the stated causes of action expressly seeking compensation for damages to real estate are local in nature, as opposed to transitory actions, and can only be brought in the jurisdiction (New Jersey) where the real estate is located. For this was cited the classic case of Livingston v. Jefferson, Fed.Cas. No. 8,411, and the many cases which have followed it. The cases are largely collected in a note in 42 A.L.R. 196.

For the plaintiff it is insisted that the rule of Livingston v. Jefferson can be supported upon no principle save an unreasonable application of the doctrine of stare decisis. It is urged that an action to recover for an injury to real property is no more local than an injury to the person or to personal property and that even actions to recover for torts to real property committed in a state other than that in which the real property is located and actions on contracts respecting lands are recognized as transitory. This court is urged to adopt a rule which is claimed to be more reasonable and logical and as announced in Little v. Chicago, St. Paul, Minneapolis & Omaha R. Co., 65 Minn. 48, 67 N.W. 846, 33 L.R.A. 423. That the rule of Livingston v. Jefferson has been severely criticised is apparent from such authorities as 3 Beale on Conflict of Laws 1652, 1657, where it is said that the doctrine "is an example of stare decisis in its worst aspect — namely, a blind adherence to precedents."

This is a diversity case and I am required by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and other cases to undertake the sometimes difficult task of attempting to ascertain with precision the attitude of the Delaware courts. No pertinent Delaware decision has been found, and there is little, if any, data from which a conclusion can be drawn.

Fortunately, however, in the view I take of the case, it is unnecessary for me to exhibit the temerity to question a considered opinion by Chief Justice Marshall and announced in Livingston v. Jefferson. The causes of action now considered are brought expressly under the provisions of the New Jersey statute hereinbefore quoted. The New Jersey statute therefore must be construed and considered. All of the authorities agree that where a case is governed by the...