National Screen Service Corp. v. Poster Exchange, Inc., 19355.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: TUTTLE, , and JONES and GEWIN, Circuit
• Citation: 305 F.2d 647
• Parties: NATIONAL SCREEN SERVICE CORPORATION, Appellant, v. The POSTER EXCHANGE, INC., Appellee.
• Docket Number: No. 19355.,19355.
• Decision Date: 11 July 1962

305 F.2d 647 (1962)

NATIONAL SCREEN SERVICE CORPORATION, Appellant,
v.
The POSTER EXCHANGE, INC., Appellee.

No. 19355.

United States Court of Appeals Fifth Circuit.

July 11, 1962.

305 F.2d 648

Walter S. Beck, New York City, Charles A. Moye, Jr., E. Smythe Gambrell, Gambrell, Harlan, Russell, Moye & Richardson, Atlanta, Ga., Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for appellant.

C. Ellis Henican, Jr., New Orleans, La., Trammell E. Vickery, Jones, Bird & Howell, Atlanta, Ga., Henican, James & Cleveland, New Orleans, La., for appellee.

Before TUTTLE, Chief Judge, and JONES and GEWIN, Circuit Judges.

GEWIN, Circuit Judge.

National Screen Service Corporation, defendant-appellant, has appealed from an order of the United States District Court for the Northern District of Georgia, which denied appellant's motion for summary judgment and granted The Poster Exchange, Inc., plaintiff-appellee, a preliminary injunction which in effect

305 F.2d 649

directed appellant, until further notice or order of the Court, to continue business dealings with appellee "upon the same terms and conditions which prevailed prior to February 15, 1961."¹

The complaint charges National Screen with violation of § 2 of the Sherman Act. It is alleged that National is utilizing its monopoly position as sole manufacturer and distributor of motion picture accessories to exclude competition between National and Poster Exchange and to maintain and extend its already monopolistic market position in the distribution of such accessories with regard to films released through the major distributors of motion pictures.

The device used for such purpose is alleged to be a refusal by National to deal with Poster Exchange. There is an allegation that this alleged refusal to deal is inflicting irreparable damage upon Poster Exchange, since its business demands the ability to supply customers promptly with accessories which are available only through National.

Poster Exchange is a poster-renter or "jobber" engaged in the business of selling or renting to motion picture theatres standard motion picture advertising accessories, such as posters and stills for theatre billboards and lobbies. National has for many years been engaged in the business of manufacturing and distributing such motion picture advertising accessories directly to motion picture theatres as well as to poster-renter jobbers such as Poster Exchange. This resulted in National competing with its "jobbers" for the motion picture theatre's advertising business. Poster Exchange has obtained accessories from National since the year 1947 in substantial quantities. The market area involved embraces cities in the states of Alabama, Georgia, Florida and Tennessee. National also supplies exhibitors in the same area and both are engaged in interstate commerce. There is no contractual relationship between the parties.

National notified Poster Exchange on February 15, 1961, that from and after May 16, 1961, National would no longer make accessories available to poster-renter "jobbers" such as Poster Exchange, but would restrict its business to dealing solely and directly with motion picture theatres, often referred to as exhibitors.

Prior to 1952, National Screen had an exclusive license from the motion picture companies to manufacture and distribute motion picture advertising accessories. There is some dispute as to whether the license was exclusive between 1952 and 1957 or non-exclusive, but in 1957 National Screen entered into a "Consent Decree" with the government² in a case

305 F.2d 650

then pending in the United States District Court, Southern District of New York, styled United States of America v. National Screen Service Corp., et al

The crux of this "Consent Decree" was to give Poster Exchange (and others) the qualified right to obtain its own license to manufacture and distribute its own accessories and to compete with National in the market.

Poster Exchange is not presently, nor has it ever been, in the business of manufacturing motion picture accessories. Conceding that it has been in active competition with National for many years, Poster Exchange urges that National should be required to continue to make available to it the advertising accessories which National manufactures. Poster Exchange contends that unless the Court enjoins National from refusing to deal with it, then it will be eliminated as a competitor since National enjoys a monopolistic position in this particular market.

National asserts that Poster Exchange in its position as "jobber" does not have a vested right to require National to assume all of the business risks of manufacturing the accessories and then be required to furnish Poster Exchange with its needs. National further asserts that by virtue of the "Consent Decree" supra, National does not now and cannot ever enjoy a "monopoly" of the motion picture advertising accessory business.

National, in response to an application by Poster Exchange for a temporary injunction, moved for summary judgment, and in support thereof filed affidavits. In response to National's motion for summary judgment, Poster Exchange filed an affidavit by its president, in opposition, and National thereupon filed a further affidavit. The deposition of M. J. Rogers, President of Poster Exchange, was taken by National. National contends that the admission of Mr. M. J. Rogers in his deposition that Poster Exchange had never applied for a license to manufacture said accessories, removes all material issues of fact from the case and requires the Court to enter a judgment for National as a matter of law.

After the Court's order denying summary judgment and granting the preliminary injunction, National appealed. Accordingly, the issues before this Court are: (1) Whether the District Court erred in denying National's Motion for Summary Judgment; and, (2) Whether the District Court abused its discretion in granting a preliminary injunction to Poster Exchange.

Taking the questions in reverse order, it is clear that the granting or refusing a preliminary injunction is in the sound discretion of the trial judge. It appears that the District Judge concluded that to grant the temporary order would adequately protect Poster Exchange pending a trial on the merits; whereas a denial of the relief would result in the destruction of its business, giving National benefit of a result it should obtain only by winning the case on its merits. In effect, the District Court's action in this regard serves to continue a relationship which has existed voluntarily between the parties for years. We cannot conclude that such action is a clear abuse of discretion. Joseph Bancroft & Sons Co. v. Shelley Knitting Mills, Inc., 3 Cir., 268 F.2d 569 (1959); Burton v. Matanuska Val. Lines, Inc., 9 Cir., 244 F.2d 647, 17 Alaska 298, (1957); Jiminez v. Barber, 9 Cir., 252 F.2d 550 (1958). The other question is the more serious one, and requires a thorough examination of the cases.

We come first to a consideration of the applicable principles relating to summary judgments under Federal Rule of Civil Procedure 56, 28 U.S.C.A.

305 F.2d 651

The law is well settled that in order to entitle the moving party to summary judgment, it must be clearly shown: (1) that there is no genuine issue as to any material fact in the case; and (2) that he is entitled to a judgment in his favor as a matter of law. The rule should be invoked cautiously in order to allow a full trial where there is a bona fide dispute of facts between the parties. Summary judgment should be granted only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, when no genuine issue remains for trial, and it is not the purpose of the rule to deny to litigants a right of trial if they really have issues to try. Sartor et al. v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967; Associated Press et al. v. U. S., 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013; Eccles v. People's Bank of Lakewood Village, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784. It is no part of the duty of the Court to decide factual issues, but only to determine whether there are factual issues to be tried. Slagle v. U. S., 5 Cir., 228 F.2d 673

The moving party has the burden of positively and clearly demonstrating that there is no genuine issue of fact and any doubt as to the existence of such an issue is resolved against him. Heyward v. Public Housing Administration et al., 5 Cir., 238 F.2d 689. A long line of cases have held that summary judgment should not be granted if there is the "slightest doubt" as...