Spanos v. Skouras Theatres Corporation

• Decision Date: 30 October 1964
• Parties: Nick C. SPANOS, Plaintiff, v. SKOURAS THEATRES CORPORATION, Theatre & Cinema, Inc., Philhamboro, Inc., Youngstown Theatres Corporation and Modern Playhouses, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

235 F. Supp. 1

Nick C. SPANOS, Plaintiff, v. SKOURAS THEATRES CORPORATION, Theatre & Cinema, Inc., Philhamboro, Inc., Youngstown Theatres Corporation and Modern Playhouses, Inc., Defendants.

United States District Court S. D. New York.

October 30, 1964.

Kissam & Halpin, New York City, for plaintiff, Leo T. Kissam, Michael W. Graney, Edmond K. Leach, New York City, of counsel.

Sherpick, Regan & Davis, New York City, for defendants, Eugene A. Sherpick, William C. Woodson, New York City, of counsel.

WYATT, District Judge.

This is an action by a lawyer to recover compensation for professional services.

There are two separate claims, each stated in a separate count: (1) for $126,000 said to be due under a specific contingent fee agreement (for 17½% of recovery) and (2) for $875,000 as the claimed reasonable value of his services.

There was a trial to the Court, a jury having been waived after demand by defendants for a jury trial.

1. Jurisdiction of this Court

Jurisdiction of this Court is laid on diversity of citizenship. 28 U.S.C. § 1332(a) (1).

Defendant corporations are stipulated each to have its principal place of business in New York; they are thus citizens of New York for diversity purposes. 28 U.S.C. § 1332(c).

Plaintiff alleges that he is a citizen of California. Defendants deny this, asserting that he is a citizen of New York and that this defeats diversity jurisdiction in this Court.

This jurisdictional issue must first be decided.

An individual citizen of the United States who is domiciled in a particular state is a citizen of that state. Citizenship of an individual, therefore, for diversity purposes, is in that state in which he or she is domiciled. Williams v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758 (1914).

Jurisdiction of this Court is determined by the state of affairs when the action is here commenced. Smith v. Sperling, 354 U.S. 91, 93, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (footnote 1) (1957); Dery v. Wyer, 265 F.2d 804, 808 (2d Cir. 1959). The question then is whether plaintiff was domiciled in New York on October 13, 1959 when this action was commenced. The answer depends on the facts of record relevant to domicile.

Plaintiff (usually for convenience "Spanos") was born in Greece in 1918. He was brought by his parents to this country as a child and became a citizen of the United States through the naturalization of his father. He grew up in Pittsburgh, living with his parents there, and graduated from the University of Pittsburgh. He graduated from Harvard Law School in June 1947. While in law school he became interested in the anti-trust problems of the motion picture industry and wrote a thesis on the subject. He then worked for a year in New York for the Motion Picture Producers and Distributors Association. In July 1948, he went to California, apparently to settle down there. He got a position with a law firm in Los Angeles and, after taking the necessary examination, was admitted to the California bar on January 4, 1949. About that same time he left the law firm and began to work on claims under the antitrust laws of W. D. Fulton against producers and distributors of movies (apparently now accepted as a synonym for motion pictures; Webster's Third New International Dictionary, page 1480). Fulton had been a movie theatre operator in Kansas City, Missouri, and had retained W. G. Boatright, a lawyer in Kansas City, to press his claims. At the urging of Fulton, plaintiff became associated in 1949 with Boat-right in the Fulton case. The complaint containing Fulton's claim was filed, however, in the federal court in California. This was in June 1949. (The action was later transferred to Kansas City by court order.)

Spanos has had, since January 1949, an office address in California. This has generally been office space in an office of others but at times he may have had an office by himself. Until early 1955, Spanos lived at various addresses in the Los Angeles area — a rooming house, a club, apartments. His mother at one time had a home in Los Angeles and he lived there for a while. Between January 1949 and early 1955, he was away from California intermittently; since early 1955, he has been away from California continuously and has not had a physical residence — apartment, home, club room or the like — in California.

In June 1955, Spanos rented an apartment in New York and moved his residence here; he had theretofore lived in hotels when in New York. His purpose in coming to New York was in connection with the services for which he here sues. It seems fair to infer that his intention was to give up any residence in New York when these services were concluded.

Spanos married in April 1956 and brought his wife to live in his New York apartment, soon moving to a larger apartment nearby. Two children were born to Spanos and his wife in New York. He and his family gave up residence and their apartment in New York in July or August 1959, following his discharge by defendants on October 13, 1958. They then moved to Kansas City where they had already rented an apartment. They were living in that apartment or in a rented house in Kansas City when this action was commenced. From January 1949 to the commencement of this action, the principal interest of Spanos was in working on movie antitrust suits, some in California but most of them outside California, principally in Kansas City and New York.

Considering all the facts of record, and particularly that Spanos since early in 1949 has been a member of the California bar and is not admitted to the bar of any other state, I conclude that he established a domicile in California in 1948. Defendants would seem to have the burden to show that this domicile, once established, was abandoned in favor of a New York domicile. State of Texas v. State of Florida, 306 U.S. 398, 427, 59 S.Ct. 563, 830, 83 L.Ed. 817 (1939); but cf. Haymes v. Columbia Pictures Corp., 16 F.R.D. 118, 120 (S.D.N.Y.1954). Regardless of the burden of proof, I do not feel that the record facts permit a finding that Spanos changed his domicile to New York. In this connection, it seems highly significant that he did not apply for admission to the New York bar. He was eligible for admission without examination (Rule VII of the Rules of the Court of Appeals of New York). It is inconceivable that Spanos, had he intended to make his home permanently in New York, would not have applied for admission to the New York bar. His failure to do so evidences an intent not to reside permanently in New York.

While he did not maintain a residence — home, room, apartment — in California, this is not essential to maintain a domicile, which frequently exists without any residence. See, for example, Sweeney v. District of Columbia, 72 App.D.C. 30, 113 F.2d 25, 26, 27, 29, 129 A.L.R. 1370 (1940), cert. denied 310 U.S. 631, 60 S.Ct. 1082, 84 L.Ed. 1402 (1940).

At the commencement of this action, plaintiff was domiciled in California, possibly in Missouri. In any case, he was not domiciled in, and thus not a citizen of, New York at the commencement of this action. Accordingly, there is jurisdiction in this Court by reason of diversity of citizenship.

2. The Express Agreement Claim

This action, like many others, may be said to derive from United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948). This decision was that the major producers and distributors of movies had violated the antitrust laws, among other things, in that they had discriminated against independent exhibitors in favor of theatres owned by them. "Clearances have been used along with price fixing to suppress competition with the theatres of the exhibitor-defendants and with other favored exhibitors" (334 U.S. at 148, 68 S.Ct. at 924).

Three brothers of Greek birth or descent — George, Spyros and Charles Skouras — were active and successful in the motion picture industry in the United States for many years before and after the events in suit.

Defendant Skouras Theatres Corporation ("Skouras Theatres") operates a chain of movie houses in and around New York City. The other four defendant corporations own individual movie theatres and are themselves wholly or partially owned subsidiaries of Skouras Theatres. The five defendant corporations are sometimes referred to herein as the "Skouras companies".

One-half of the stock of Skouras Theatres is owned by Metropolitan Playhouses, Inc. ("Metropolitan"); the other half of the stock of Skouras Theatres is owned by members of the Skouras family.

The controlling stock interest in Metropolitan is owned by United Artists Theatre Circuit, Inc. ("United").

George P. Skouras (sometimes "George" or "George Skouras") was at all relevant times President of Metropolitan and of United. During the relevant period George was a director but not an officer of Skouras Theatres. It is stipulated between the parties that if George acted for Skouras Theatres or for any other defendant in making any agreements with Spanos (and defendants deny that he made any agreements for them with Spanos), the agreements would be binding on defendants. Aside from the stipulation, the record establishes that George was the dominant figure in the affairs of defendant corporations and clearly had authority to act for them.

For many years the Skouras companies have received the professional services of the following able and outstanding New York lawyers: (1) the law firm of Weisman, Celler, Allan, Spett & Sheinberg, headed by Milton C. Weisman, Esq., and with 13 partners and 23 associates; (2) the law firm of Sherpick, Regan & Davis, a smaller firm headed by Eugene A. Sherpick, Esq.; (3) James M. Landis, Esq., a former Dean of Harvard Law School and holder of many responsible positions in the national government; and (4) Louis M. Weber, Esq., whose full time was employed as house counsel. Weisman and Landis were at all relevant times directors of Skouras Theatres.

The Paramount...