Southeastern Promotions, Ltd. v. City of Mobile, Ala.

• Decision Date: 29 February 1972
• Docket Number: No. 72-1408.,72-1408.
• Parties: SOUTHEASTERN PROMOTIONS, LTD., Plaintiff-Appellant, v. CITY OF MOBILE, ALABAMA, a Municipal Corporation et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

457 F.2d 340 (1972)

SOUTHEASTERN PROMOTIONS, LTD., Plaintiff-Appellant, v. CITY OF MOBILE, ALABAMA, a Municipal Corporation et al., Defendants-Appellees.

No. 72-1408.

United States Court of Appeals, Fifth Circuit.

February 28, 1972.

Supplemental Opinion February 29, 1972.

Ronald D. Nickum, Amarillo, Tex., for plaintiff-appellant.

Fred G. Collins, James Lackey, Asst. City Atty., Mobile, Ala., for defendants-appellees.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

BY THE COURT:

On consideration of appellant's motion for injunction pending appeal, the Court being of the opinion that a full and meaningful hearing of plaintiff's motion for preliminary injunction was not held in the court below;

It is ordered that the District Court's judgment denying plaintiff's motion for a preliminary injunction herein, be vacated. This case is remanded to the District Court for an immediate hearing and reconsideration of the denial of preliminary injunction. A full and meaningful hearing should be held forthwith and the matter expeditiously disposed of by the Trial Court.

SUPPLEMENTAL OPINION

On yesterday, February 28, 1972, we considered appellant's motion for injunction pending appeal and issued our order vacating the District Court's judgment denying plaintiff's motion for a preliminary injunction. We also remanded the case to the District Court for an immediate hearing and reconsideration of the denial of preliminary injunction. We said that a full and meaningful hearing should be held forthwith and the matter expeditiously disposed of by the Trial Court.

The Trial Court has apparently misconstrued our order and declined to grant the immediate hearing required by us and has set the matter for hearing on tomorrow, March 1, 1972, at 5 p. m. Plaintiff has sued for the use of the Mobile Municipal Auditorium for the exhibition of its musical production "Hair" on today, February 29, 1972, and thereafter on March 1 and 2, 1972. It is apparent that the immediate and prompt disposition which we ordered in this case will not occur under the circumstances.

Appellant has now renewed its motion for injunction pending appeal and counsel for plaintiff and defendants have personally presented themselves before a member of the panel of this Court today and offered their arguments in support of and in opposition to the granting of an injunction, and the Court has before it a transcript of the proceedings held before the District Court today, in which the Trial Court has stated that the matter will not be reached until tomorrow at 5 p. m.

The question of the right to present the musical production "Hair" has been considered in Southeastern Promotions, Ltd. v. City of Atlanta, Georgia (D.C.N.D.Ga.1971), 334 F.Supp. 634, and in Southeastern Promotions, Ltd. v. City of Birmingham (D.C.N.Ala.), CA No. 71-1158, in which the Federal District Courts in each instance required city authorities to permit the use of municipal auditorium facilities for the exhibition of this production. See also to the same effect: Southwest Productions, Inc. v. Freeman (D.C.Ark.1971), (Little Rock, Arkansas), and Southeastern Promotions, Ltd. v. City of Charlotte (D.C.N.C.1971), 333 F.Supp. 345 (Charlotte, North...