Murdock v. City of Jacksonville, Florida
| Decision Date | 28 June 1973 |
| Docket Number | Civ. No. 72-247 and 72-248. |
| Citation | 361 F. Supp. 1083 |
| Parties | James F. MURDOCK, Plaintiff, v. CITY OF JACKSONVILLE, FLORIDA, et al., Defendants. James F. MURDOCK, Plaintiff, v. Hans G. TANZLER, Jr., Individually, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
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P. Donald DeHoff, Jacksonville, Fla., for plaintiff.
William Lee Allen, Jacksonville, Fla., for City of Jacksonville.
Robert P. Smith, Jr., Bedell, Bedell, Dittmar, Smith & Zehmer, Jacksonville, Fla., for L & G Promotions, Inc.
SUMMARY FINAL JUDGMENT
This cause came on for hearing on defendants' motions for summary judgment in these two companion cases numbered 72-247-Civ-J-S, hereinafter referred to as the antitrust case, and 72-248-Civ-J-S, hereinafter referred to as the civil rights case. The factual background giving rise to the two cases is identical and undisputed between the parties. Only questions of law remain for determination.
The antitrust case involves the liability of a private wrestling promoter, the City of Jacksonville, Florida, its mayor and its coliseum manager, for alleged violations of the Sherman Antitrust Act. The civil rights case involves the liability of the wrestling promoter, the mayor and the coliseum manager, for alleged violations of the federal civil rights act.
The defendant, Consolidated City of Jacksonville, through defendants, Hans G. Tanzler, Jr., Mayor of Jacksonville, and Richard McMeekin, Jacksonville Coliseum general manager, granted a lease to defendant, L & G Promotions, Inc. (L & G), a private Florida corporation, for the presentation of wrestling matches in Jacksonville Veterans Memorial Coliseum every Thursday evening.
The lease ran from January 1, 1972, to December 31, 1972, with an option to extend it for an additional four years. The option was exercised. A further provision prohibited the lessor from leasing "to any other lessee the premises covered by this lease or its Auditorium for wrestling matches." A resolution of the Jacksonville City Council provides that during the term of L & G's lease, no other lessee will be permitted to use the coliseum for wrestling matches.
The coliseum was constructed with bond money approved by the citizens of Jacksonville and is a public arena available for lease or rent for various types of entertainment for the general public. Plaintiff contends that it is the only facility in the downtown area of Jacksonville capable of entertaining large crowds for wrestling matches.
The legislative and administrative authorities of the City determined to rent the coliseum for wrestling only one night each week and to grant that night to defendant, L & G, rather than to plaintiff. Plaintiff contends that the exclusive lease provision and resolution of the City Council are violative of the federal civil rights act, 42 U.S.C. § 1983, and the Sherman Antitrust Act, 15 U.S. C. §§ 1 and 2.
Plaintiff seeks to have this Court declare the lease and restrictive covenant therein null and void as violative of these antitrust and civil rights laws, and further seeks to have this Court enjoin defendants from entering into any such exclusive lease agreement in the future, or in the alternative to permit rental of the coliseum by plaintiff on any date not already allocated.
Plaintiff specifically alleges that L & G has threatened to "blackball" any wrestler who contracts to wrestle for an "independent promoter", such as plaintiff, and that the effect of such "blackball" is to prevent any wrestler who performs for plaintiff or another "independent promoter" from ever wrestling again for L & G. Plaintiff further alleges that L & G has, on at least one occasion, attempted to prevent competition by an independent promoter by leasing an armory and leaving it vacant on the night that the independent promoter had planned to stage a wrestling match in it.
The "blackball" and armory rental allegations may be readily resolved without reaching their merits. The allegation that L & G has threatened to "blackball" any wrestler who performs for the plaintiff, if true, would probably justify antitrust relief to an independent promoter shown to have been injured in his business as a result of the practice complained of. United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236 (1948); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). Likewise, the allegation that L & G has prevented competition by an independent promoter by leasing an armory and leaving it vacant on the night that the independent promoter had planned to stage a match, if true, would probably justify antitrust relief to an independent promoter shown to have been injured in his business as a result of the practice complained of. But both of these allegations must fail at the summary judgment stage of this lawsuit because they are bare allegations of the complaint and are not supported by any affidavit "made on personal knowledge" setting forth "such facts as would be admissible in evidence" and signed by an affiant "competent to testify to the matters stated therein".
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Rule 56(e) of the Federal Rules of Civil Procedure.
Furthermore, the allegations of "blackballing" wrestlers and of leasing an armory only to leave it vacant have been denied by the uncontroverted affidavit of L & G's principal manager in testimony alleged to be made on personal knowledge. In his deposition he stated that neither he nor L & G has ever "blackballed" or declined to hire a wrestler because the wrestler wrestles for any independent promoter. He further stated that it was not uncommon for professional wrestlers to wrestle both for L & G and for other promoters within a very short time. In fact, he states, that at least two of the wrestlers who wrestled for plaintiff in the two wrestling matches he promoted in February, 1966, wrestled for L & G before that time and have done so since. Furthermore, he denied that L & G has ever leased an armory or other wrestling hall purposefully to leave it vacant and thereby to prevent any independent promoter or other person from having access to it for wrestling.1
Plaintiff has not offered any evidence of the truth of these two allegations, and they are, therefore, entitled to no consideration whatsoever. Rule 56(e) of the Federal Rules of Civil Procedure.
Even in an antitrust case a party cannot rest on the allegations contained in his complaint but must, in opposition to a motion for summary judgment, come forward with affidavits setting forth specific facts showing that there is a genuine issue of material fact for trial. Tripoli Company v. Wella Corp., 425 F.2d 932 (3d Cir. 1970); A & M Stores, Inc. v. Hiram Walker, Inc., 427 F.2d 167 (5th Cir. 1970); Beckman v. Walter Kidde & Co., Inc., 316 F.Supp. 1321 (E.D.N.Y.1970).
Plaintiff's primary antitrust allegations are that the exclusive lease agreement (1) constitutes a contract in restraint of trade in violation of the Sherman Antitrust Act, 15 U.S.C. § 1, because it effectively denies him the right to conduct his business in Jacksonville since no other adequate or appropriate facility is available in the downtown area, and that the exclusive lease agreement (2) promotes an illegal monopoly in violation of the Sherman Antitrust Act, 15 U.S.C. § 2.
L & G or its predecessor in interest has rented the Jacksonville Coliseum on nearly every Thursday night for the production of professional wrestling matches from 1961, until the present time. These matches have produced revenue to the City in rental and concession income exceeding $100,000.00 per year; an amount which constitutes about 30% of the coliseum's annual budget.
In 1971 a City Council resolution raised the minimum fee to be realized by the lessor for renting the coliseum from $500.00 to $750.00 per night, or 12% of the gross amount of any type of admission fee received after deduction of taxes, whichever was greater.
Because of the importance to the City of maximizing the coliseum revenues in order to reduce the coliseum deficit, it is desirable that paid attendance at revenue-producing events in the facility regularly exceed the amount necessary to produce the minimum rental of $750.00. On 97 of the 113 wrestling dates of L & G during 1970, 1971, and through July, 1972, the City received revenue calculated as a percentage of admission fee rather than the minimum stipulated rental. In this period, therefore, the City received as rental $105,995.65 rather than the stipulated minimum rental, at $500.00 or $750.00 per date, of $64,500.00.
On February 8, 1966, the plaintiff produced a wrestling match at the coliseum from which the City realized the minimum rental and plaintiff realized a net loss of $388.07. A similar match was produced by plaintiff in the coliseum on February 15, 1966, from which the City realized the minimum rental and from which plaintiff realized a net loss of $1,609.85. Plaintiff has not produced a wrestling match in Jacksonville or elsewhere since.
Jacksonville City Council Resolution 71-746-315 grants the manager of the coliseum the discretion to prohibit the scheduling of two or more events of a similar nature within 14 days before and 14 days after each other. It is uncontroverted that because of the lack of attendance and resultant financial loss to the City occasioned by scheduling three...
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