Samuel Goldwyn Pr. v. Fox West Coast Theatres Corp., 29756.

• Decision Date: 03 October 1956
• Docket Number: No. 29756.,29756.
• Citation: 146 F. Supp. 905
• Parties: SAMUEL GOLDWYN PRODUCTIONS, Inc., Plaintiff, v. FOX WEST COAST THEATRES CORPORATION et al., Defendants.
• Court: U.S. District Court — Northern District of California

146 F. Supp. 905

SAMUEL GOLDWYN PRODUCTIONS, Inc., Plaintiff, v. FOX WEST COAST THEATRES CORPORATION et al., Defendants.

No. 29756.

United States District Court N. D. California, S. D.

October 3, 1956.

Joseph L. Alioto and Maxwell Keith, San Francisco, Cal., for plaintiff.

Kenneth C. Royall and Frederick W. R. Pride, New York City, Dunne, Dunne & Phelps, Arthur B. Dunne and Edward D. Keil, San Francisco, Cal., for defendants named in the order.

Sullivan, Roche, Johnson & Farraher, San Francisco, Cal., for defendants Golden State Theatre & Realty Corp. and others.

EDWARD P. MURPHY, District Judge.

These are two motions in an antitrust treble damage action brought by Samuel Goldwyn Productions, Inc., against Twentieth Century-Fox Film Corporation, National Theatres Corporation, Fox West Coast Theatres Corporation and Fox West Coast Agency Corporation (hereafter referred to, respectively, as Twentieth Century-Fox, National, Fox West Coast Theatres, and Fox West Coast Agency). The original suit by the plaintiff named additional defendants for whom a separate trial has been ordered.

This suit was filed on May 16, 1950. The first motion before the court is defendants' motion for a partial summary judgment dismissing all claims which accrued prior to May 16, 1947 on the ground that they are barred by the applicable statute of limitations. The applicability of the three year statute of limitations of Cal.Code of Civil Procedure, § 338(1), see Steiner v. 20th Century-Fox, 9 Cir., 1955, 232 F.2d 190, 194, to this proceeding is not in issue on this motion, and may be assumed for the purposes of this motion to be undisputed.

Plaintiff argues that the statute of limitations was suspended by virtue of Section 5 of the Clayton Act, Act of October 15, 1914, c. 323, 38 Stat. 731, 15 U.S.C.A. § 16, which provides:

"Whenever any suit or proceeding in equity or criminal prosecution is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, the running of the statute of limitations in respect of each and every private right of action arising under said laws and based in whole or in part on any matter complained of in said suit or proceeding shall be suspended during the pendency thereof."

The prior proceeding by the United States upon which plaintiff relies is United States v. Paramount Pictures, Inc., D.C., 70 F.Supp. 53 (hereafter referred to as the Paramount case) filed in the United States District Court for the Southern District of New York on July 20, 1938, and not finally terminated until after three years preceding the filing of the complaint in the instant action on May 16, 1950. Of the defendants here, only Twentieth Century-Fox and National were defendants in the Paramount case, and therefore the statute of limitations could, of course, only be suspended as to them. Momand v. Universal Film Exchange, 1 Cir., 1948, 172 F.2d 37, 48, certiorari denied 1949, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118. The issue before the court on this motion, therefore, is whether the statute of limitations is suspended as to defendants Twentieth Century-Fox and National between July 20, 1938 and May 16, 1947.

The proper application of Section 5 of the Clayton Act has been repeatedly spelled out by the cases. See, e. g., Momand v. Universal Film Exchange, D.C.Mass.1942, 43 F.Supp. 996, at pages 1011, 1013, affirmed 1 Cir., 1948, 172 F.2d 37, certiorari denied 1949, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118. In order for the statute of limitations to be suspended by Section 5 of the Clayton Act, the party seeking the suspension must in his complaint allege not only the same conspiracy as that alleged by the government in the prior suit, but also the use of the same means to achieve the same objectives by the same defendants. Steiner v. 20th Century-Fox Film Corp., supra, 232 F.2d at pages 196, 198. In the Steiner case the Court of Appeals had occasion to state the rule as follows:

"* * * The same means must be used to achieve the same conspiracy by the same defendants in order to toll the running of the statute of limitations under 15 U.S.C.A. § 16. Whether the statute of limitations bars the action in question may be determined in advance of trial * * *." Id., 232 F.2d at page 198.

The Court then went on to make the point that a mere similarity in some of the means used in pursuance of the conspiracy would not suffice to suspend the statute of limitations. It said:

"* * * The trial court, after hearing the parties * * * granted the appellees' motion to dismiss, for the matters complained of here are not identical with those alleged in United States v. Paramount, supra. Appellant did state similar threats of building competing theatres and withholding first-run motion pictures. However, in United States v. Paramount, supra, these threats were allegedly used for different purposes and objectives than in the present case * * *."

A comparison of the essence of the complaint in the Paramount case with the essence of the complaint of plaintiff here discloses two substantially different conspiracies, by different sets of conspirators, for quite different objectives, and employing in large part different means.

The Paramount complaint (amended and supplemental complaint, filed November 14, 1940) charged the eight principal motion picture companies with conspiracies unreasonably to restrain and monopolize the production, distribution and exhibition of motion pictures. The allegations relating to the effect of these conspirators upon the industry deal with independent, non-affiliated, producers, distributors, and exhibitors, against whom the conspiracy was directed. So far as independently produced films are concerned, the government charged that the conspiracy was effecutated "by concertedly excluding independently produced films from affiliated theatres". (Par. 152, Amended and Supplemental Complaint, Paramount case). It becomes entirely clear from a reading of the government's amended and supplemental complaint in the Paramount case that Goldwyn, the present plaintiff, was there alleged to be a "major producer", or "one which produces motion pictures for release by a major distributor pursuant to a prior understanding or agreement with such major distributor". (Par. 15(b), Amended and Supplemental Complaint, Paramount case), and not an "independent producer" or "independent distributor", against whom the conspiracies charged by the government in the Paramount case were alleged to be directed. Insofar as the government identified the "target area" of the conspiracy in its complaint and answers to interrogatories, it is clear that Goldwyn was not within that "target area", see Karseal Corporation v. Richfield Oil Corporation, 9 Cir., 1955, 221 F.2d 358, 362, and indeed was charged with being a participant and beneficiary, to some extent at least, in the conspiracies, by reason of his affiliation with United Artists, one of the defendants in the Paramount case, and by his knowledge of and agreement and consent to the distribution practices of the defendants in the Paramount case (Pars. 84, 86,...