Poster Exchange, Inc. v. National Screen Service Corp.
Decision Date | 20 June 1966 |
Docket Number | No. 22673.,22673. |
Citation | 362 F.2d 571 |
Parties | The POSTER EXCHANGE, INC., Appellant, v. NATIONAL SCREEN SERVICE CORPORATION, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Francis T. Anderson, Yeadon, Pa., for appellant.
Walter S. Beck, New York City, Charles A. Moye, Jr., Atlanta, Ga., for appellee.
Before TUTTLE, Chief Judge, BELL, Circuit Judge, and KILKENNY,* District Judge.
This is a private action, seeking treble damages for an alleged violation of Section 2 of the Sherman Act.1 The district court previously denied defendant's (appellee here; hereinafter referred to as defendant) motion for summary judgment, and that action was upheld by this Court at 305 F.2d 647 (5th Cir. 1962). In so affirming, this Court outlined the facts and the history of the litigation between these parties, as well as other relevant litigation, noting defendant's success in defending similar charges in the courts. The crux of that opinion, for present purposes, lies in this Court's summary, at 651-652, of the legal principles which would govern upon trial as follows:
Finally the Court discussed a prior case, Lawlor v. National Screen Service Corp., 270 F.2d 146 (3d Cir. 1959), upon which defendant, both then and now, places great reliance. In Lawlor it was held, after a trial on the merits, that defendant did not monopolize or attempt to monopolize within the meaning of Section 2 of the Sherman Act. Concerning Lawlor, this Court said:
Upon remand of this case, defendants renewed their motion for summary judgment. The district court, relying upon "admissions" of plaintiff's attorney that his case against defendant depended upon his prevailing on the conspiracy issue,2 and stating that it was in agreement with cases resolving "this issue of law" in favor of the defendant,3 granted the motion.
As to the allegedly fatal "admission" to the lower court by plaintiff that his case would rise or fall with the court's disposition of the conspiracy issue, it should be noted that the statement upon which the district court relied appeared solely in the context of plaintiff's case against the motion picture distributors.4 Certainly, in attempting to describe his Section 1 case against all of the defendants, plaintiff's attorney should not be held to have relinquished his Section 2 claim against National Screen. To give this statement such a binding effect would discourage frankness and candor on the part of attorneys in their relationships with the judiciary. Accordingly, we hold that plaintiff made no fatal admission regarding his Section 2 case against National Screen.
This leaves this case in exactly the same posture as this Court found it on the first appeal, with one possible exception: The supervening per curiam pronouncement of the Third Circuit in Vogelstein v. National Screen Service Corp., 310 F.2d 738 (1962), cert. denied, 374 U.S. 840, 83 S.Ct. 1894, reh. denied, 375 U.S. 873, 84 S.Ct. 34. With regard to Vogelstein, it should be noted that the opinion of the district court (The only opinion written in that case), granting National Screen's motion to dismiss, relied largely upon the Lawlor case, which, as noted above, was fully considered by this Court on the first appeal. Moreover, the Vogelstein opinion does not cite the Supreme Court cases upon which plaintiff bases its contention that defendant has violated Section 2 of the Sherman Act — cases which, according to this Court, 305 F.2d 651-652 ( ), entitled plaintiff to a trial on the merits.
Nor is it true, as urged by defendant, that the Supreme Court's denial of certiorari in Vogelstein is in any sense a legal "determination" in favor of the view of the Third Circuit. In the words of the Court:
"a denial of certiorari means only that, for one reason or another which is seldom disclosed, and not infrequently for conflicting reasons which may have nothing to do with the merits and certainly may have nothing to do with any view of the merits taken by a majority of the Court, there were not four members of the Court who thought the case should be heard."
Brown v. Allen, 344 U.S. 443, 492, 73 S.Ct. 397, 439, 97 L.Ed. 469 (1953) ( ). See also United States v. Shubert, 348 U.S. 222, 228-229, note 10, 75 S.Ct. 277, 99 L.Ed. 279 (1955); Wright, Federal Courts Section 108 at p. 431 (1963 ed.).
Although the "law of the case" doctrine, as applied in the federal courts, "does not rigidly bind a court to its former decisions, but is...
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