Frasier v. Twentieth Century-Fox Film Corp., Civ. A. No. 44-52.

• Citation: 119 F. Supp. 495
• Decision Date: 22 January 1954
• Docket Number: Civ. A. No. 44-52.
• Parties: FRASIER v. TWENTIETH CENTURY-FOX FILM CORP. et al.
• Court: U.S. District Court — District of Nebraska

119 F. Supp. 495

FRASIER v. TWENTIETH CENTURY-FOX FILM CORP. et al.

Civ. A. No. 44-52.

United States District Court D. Nebraska, Lincoln Division.

January 22, 1954.

Richard W. Smith (Woods, Aitken & Aitken), Lincoln, Neb., for plaintiff.

Kenneth E. Anderson (Beghtol, Mason & Anderson), Lincoln, Neb., for defendants.

DELEHANT, District Judge.

In this action for the recovery of treble damages arising out of the alleged violation of the Anti-trust laws, Title 15 U.S.C. Section 1 et seq., several motions are pending. I shall now announce briefly their separate disposition, so far as immediate disposition appears to be in order. I shall not offer any extended discussion of the considerations which prompt the rulings. Such discussion could serve no useful purpose, and would be calculated rather to invite and encourage the preliminary confusion which too commonly characterizes such cases and may be discerned in the file before me.

I. Motion to Quash Service of Summons and to Dismiss (filing 14)

This motion is tendered by Paramount Pictures, Inc., and rests on the contention that the moving party is not suable, and has not been validly served with process, in this district. Among many other subsidiary assertions it is urged that the moving entity has neither been authorized to do, nor done, business in Nebraska since December 8, 1932 and has been dissolved in the state of its erection since December 30, 1949. The plaintiff challenges the reality of both the withdrawal from Nebraska and the corporate dissolution of the moving defendant.

An attempt has been made, with my approval and participation, to submit the motion on affidavits and briefs. But it has accomplished little more than a demonstration of the inadequacy of that technique, at least in the instant case, insofar as the determination of the basic facts is involved. Only in a minor portion of their language are the affidavits entitled to appraisal as evidence. Some of them do contain statements of fact which should be considered. But — on both sides — they consist principally of ill concealed hearsay; the conclusions sometimes of the affiants, but often of the attorneys preparing the affidavits, from material only partly before the court, some of which material is itself hearsay; and bald argument both of fact and of law. Some of the principal affidavits are also subject to very narrow, if any, acceptance because they are made by the attorneys who are actively presenting the case to the court. The submission by counsel of themselves as witnesses upon important questions of fact in their cases is censurable and ought sternly to be discouraged. Earlier I struck from the files one affidavit on the motion upon considerations of the nature already suggested. And if I were compelled to pass upon the motion solely upon the showings now before me, I would undoubtedly strike, entirely or in part, still others presented by both parties.

But I have concluded that the showings now made are wholly unsatisfactory as the foundation for an informed ruling on the motion and that I should require the plaintiff and the moving party to present factual evidence upon the motion in open court as in a formal hearing before the judge. Upon such evidence I shall find the facts and pass upon the motion.

Therefore, an order is being entered vacating the submission or attempted submission of the motion and ordering that it be determined not upon affidavits whether now filed or not, but after a hearing on the pertinent facts in open court. The time for such hearing is not presently set but will be fixed by the court after the conference with counsel mentioned in part III, infra.

II. Motion for Preliminary Trial and Determination Upon Issue of Limitations (filing 24)

This motion was made by all named defendants except Paramount Pictures, Inc. Its ostensible principal aim is the restriction in point of time of the area of proof upon the final trial. But it is also designed as a method of narrowing the range and interval over which pretrial discovery may be allowed. Indeed, it frankly so acknowledges in its insistence that it be heard and granted before the determination of the matters involved in part III, infra.

That the court has the power to hold a separate hearing and make a preliminary ruling upon the issue of limitations is undoubtedly true. Rule 42(b), Federal Rules of Civil Procedure, 28 U.S.C.A. The right so to proceed "in furtherance of convenience or to avoid prejudice" is not seriously controverted. But the trial piecemeal of separate issues in a single suit is not the usual course. It should be resorted to only in the exercise of informed discretion and in a case and at a juncture which move the court to conclude that such action will really further convenience or avoid prejudice.

At the present moment in this case, I am not persuaded that such a preliminary and partial trial should be held. It is clearly unnecessary to avoid prejudice; and instead of furthering convenience it would more likely provoke great...