De Luxe Theatre Corp. v. Balaban & Katz Corp., 47 C 889.

• Decision Date: 12 March 1951
• Docket Number: No. 47 C 889.,47 C 889.
• Court: U.S. District Court — Northern District of Illinois
• Parties: DE LUXE THEATRE CORP. v. BALABAN & KATZ CORP. et al.

95 F. Supp. 983

DE LUXE THEATRE CORP. v. BALABAN & KATZ CORP. et al.

No. 47 C 889.

United States District Court, N. D. Illinois E. D.

March 12, 1951.

Goldberg, Devoe & Brussell, John Mulder and Francis Cuneo, all of Chicago, Ill., for plaintiff.

Poppenhusen, Johnston, Thompson & Raymond, Mayer, Meyer, Austrian & Platt, and Matthews & Springer, all of Chicago, Ill., for defendants.

CAMPBELL, District Judge.

Plaintiff brings this action, seeking damages and injunctive relief, for alleged violations by defendants of Sections 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1, 2. Plaintiff, a so-called neighborhood movie house, charges, among other things, in its complaint that the defendants violated the Act by engaging in such practices as block booking; forcing of short subjects and news reels; arbitrary designation of play dates; protection and clearance; arbitrary, unconscionable and discriminatory film rentals; and minimum admission prices. Upon motion of certain defendants, Paragraphs 24 and 25 of the complaint were stricken by the Court. See De Luxe Theatre Corp. v. Balaban & Katz Corp., D.C., 88 F.Supp. 311. Subsequently, plaintiff amended its complaint by filing new Paragraphs 24 and 25, which paragraphs all defendants now move to strike. The subject paragraphs contain the following allegations:

"24. On July 20, 1938, the United States of America filed a suit in equity in the District Court of the United States for the Southern District of New York in cause numbered Equity No. 87-273, entitled `United States of America, Plaintiff, v. Paramount Pictures, Inc., et al, Defendants', charging the defendants or their privies, except defendant Balaban and Katz Corporation, in substance with the same violations of Sections 1 and 2 of the Sherman Anti-Trust Act as are charged in this complaint against the same defendants or their privies. On October 8, 1945, said case proceeded to trial before a three-judge statutory court and evidence was taken therein until November 20, 1945. On June 11, 1946, said three-judge court filed its memorandum opinion, as reported at, D.C., 66 F.Supp. 323, and on December 31, 1946, said court issued its Findings of Fact, Conclusions of Law and Decree, as reported at D.C., 70 F.Supp. 53. On May 3, 1948, the United States Supreme Court affirmed in part and reversed in part said Decree of the United States District Court for the Southern District of New York, its decision being reported at 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. On June 2, 1948, the United States Supreme Court entered its mandate in accordance with its said Opinion, in part affirming and in part reversing said Decree and remanding the case to said District Court for further proceedings in conformity with its Opinion. On June 25, 1948, the United States District Court of New York entered an order making the Mandate and Decree of the United States Supreme Court its order and judgment."

"25. On November 8, 1948, the United States of America and defendants Radio-Keith-Orpheum Corporation, RKO Radio Pictures, Inc., and Radio Keith Orpheum Mid-West Corporation consented to the entry of a decree in said Equity No. 87-273 as to said defendants, a copy of which decree is reported at Paragraph 62,335 of CCH Trade Reg. Rep. On May 3, 1949, testimony having been taken in said cause after its remand by the United States Supreme Court, the United States of America and defendants Paramount Pictures, Inc. and Paramount Film Distributing Corporation consented to the entry of a decree in said Equity No. 87-273 as to said defendants, a copy of which decree is reported at Paragraph 62,377 of CCH Trade Reg. Rep. On July 25, 1949, after having received additional evidence and heard further arguments, said three-judge statutory court rendered its Opinion, said Opinion being reported at, D.C., 85 F. Supp. 881, and subsequently filed its Findings of Fact and Conclusions of Law in accordance with said Opinion. On February 8, 1950, said court entered its Final Decree in said Equity No. 87-273 as to defendants Columbia Pictures Corporation, Universal Corporation, United Artists Corporation, Screen Gems, Inc., Universal Pictures Company, Inc., Universal Film Exchanges, Inc., and Big U Film Exchange, Inc., a copy of which Final Decree is reported at Paragraph 62,573 of CCH Trade Reg. Rep. On February 8, 1950, said court entered its Final Decree in said Equity No. 87-273 as to defendants Loew's, Incorporated, Twentieth Century-Fox Film Corporation, Warner Bros. Pictures, Inc., Warner Bros. Pictures Distributing Corporation (formerly known as Vitagraph, Inc.), Warner Bros. Circuit Management Corporation and National Theaters Corporation, a copy of which Final Decree is reported at Paragraph 62,573 of CCH Trade Reg. Rep. Plaintiff states the final adjudications heretofore alleged in this paragraph conclusively determine the issues in this complaint in favor of the plaintiff as to defendants therein involved and their privies and that said defendants are estopped from relitigating any of the issues so previously adjudicated".

It should be noted that, since the filing of the instant motion, the United States Supreme Court affirmed the decision of the three-judge court as to the Loew's-Warner-Fox bloc, See 339 U.S. 974, 70 S.Ct. 1031. The appeal time has passed for the United Artists-Columbia-Universal bloc.

Defendants' motion to strike is based on the following grounds: (1) Certain defendants consented to the entry of decrees upon remand to the three-judge court — The RKO bloc...