Garbose v. George A. Giles Co.

• Citation: 183 F.2d 513
• Decision Date: 12 July 1950
• Docket Number: No. 4489.,4489.
• Parties: GARBOSE et al. v. GEORGE A. GILES CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

183 F.2d 513 (1950)

GARBOSE et al. v. GEORGE A. GILES CO. et al.

No. 4489.

United States Court of Appeals First Circuit.

July 12, 1950.

George S. Ryan, Boston, Mass. (William Garbose, Athol, Mass., on the brief), for appellants.

Gilbert W. Cox, Boston, Mass. (George M. Yaghjian, Boston, Mass., on the brief), for George A. Giles Company and Trimount Theatres, Inc.

Arthur E. Whittemore, Boston, Mass. (John R. Hally and Nutter, McClennen & Fish, all of Boston, Mass., on the brief), for M & P Theatres Corporation et al.

Before MAGRUDER, Chief Judge, and WOODBURY and FRANK, Circuit Judges.

FRANK, Circuit Judge.

Plaintiffs brought this action for treble damages under the Anti-Trust Act. 15 U. S.C.A. §§ 1-7. The complaint charged a conspiracy by several defendants, some of whom are distributors, and some exhibitors, of motion pictures. After plaintiffs had filed an amended complaint with similar charges, the district judge ordered them to file separate statements particularizing as to two of the defendants, the exhibitors, George A. Giles Company and Trimount Theatres, Inc. Plaintiffs did so. These two separate statements contained a substantial part of the allegations in the amended complaint. But the separate statements relating to Giles and Trimount respectively prayed for damages as to Giles only and Trimount only.

The first count of the separate statement as to Giles alleged a conspiracy between it and the other defendants with respect to a so-called national (or territorial) release date. The second count alleged a similar conspiracy as to block-booking, so-called blind selling or blind buying, and minimum admission prices. The third count contained combined allegations of conspiracy as to national release date, block-booking and minimum admission prices. The fourth count alleged a national release date conspiracy, specifically relating to plaintiffs' theaters in Athol, Mass. The fifth count was substantially the same as the fourth but related solely to the defendant exhibitors. The separate statement as to defendant Trimount was in all respects the same as that as to Giles except for appropriate changes of the name in the title and the prayer.

Several of the defendants made motions for summary judgments. The district judge denied most of these motions but granted summary judgments (denominated by him as "final" judgments) as to the defendants Giles and Trimount, with respect to Count 1 of each of the separate statements relating to them.¹ From those judgments, plaintiffs appeal.²

1. Disregarding for the moment the separate statements, the summary judgment orders, since at most they dismissed some of several defendants, all of whom were charged in the amended complaint as conspirators, would clearly have been interlocutory and not appealable before the promulgation of Federal Rules of Civil Procedure, rule 54(b), 28 U.S.C.A.³ That Rule, as originally promulgated,^3a resulted in no change in this doctrine.⁴

2. Assuming, without deciding, that the separate statements constituted separate suits, one as to Giles and one as to Trimount, wholly apart from the suit against the other defendants, nevertheless the summary judgments, under Rule 54(b) before its recent amendment, would clearly not have been final and appealable. For Count 1 of each separate statement is not sufficiently distinct from some of the counts⁵ which still remain to be disposed of.⁶

3. By recent amendment, Rule 54(b) was changed to read as follows: "Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims."⁷ Here, although the district judge directed the entry of "final judgments," he did not, in addition, make any "express determination that there is no just reason for delay." Consequently, even if we assume that the amended Rule substantially altered the previous rulings, the summary judgments here are not appealable.⁸

Appeals dismissed for want of appellate jurisdiction.

1 In accordance with the judge's...