Tague v. Balaban, 53 C 1539.

• Decision Date: 06 November 1956
• Docket Number: No. 53 C 1539.,53 C 1539.
• Citation: 146 F. Supp. 356
• Court: U.S. District Court — Northern District of Illinois
• Parties: Sidney TAGUE, individually, and as Administrator of the Estate of Harry Tague, deceased, Plaintiff, v. Harry BALABAN, Elmer Balaban, John Balaban, H & E Balaban Corporation, a corporation of the State of Illinois, Joseph H. Feulner, Balaban & Katz Corporation, a corporation of the State of Delaware, Twentieth Century-Fox Film Corporation, a corporation of the State of New York, Paramount Film Distributing Corporation, a corporation of the State of New York, Warner Bros. Pictures Distributing Corporation, a corporation of the State of Delaware, and Loew's Inc., a corporation of the State of Delaware, Defendants.

146 F. Supp. 356

Sidney TAGUE, individually, and as Administrator of the Estate of Harry Tague, deceased, Plaintiff, v. Harry BALABAN, Elmer Balaban, John Balaban, H & E Balaban Corporation, a corporation of the State of Illinois, Joseph H. Feulner, Balaban & Katz Corporation, a corporation of the State of Delaware, Twentieth Century-Fox Film Corporation, a corporation of the State of New York, Paramount Film Distributing Corporation, a corporation of the State of New York, Warner Bros. Pictures Distributing Corporation, a corporation of the State of Delaware, and Loew's Inc., a corporation of the State of Delaware, Defendants.

No. 53 C 1539.

United States District Court N. D. Illinois, E. D.

November 6, 1956.

Horace Young, Chicago, Ill., for plaintiff.

Miles G. Seeley, Chicago, Ill., for Loew's Inc. and Warner Bros. Pictures Distributing Corp.

Samuel W. Block, Chicago, Ill., for John Balaban, Feulner, Balaban & Katz and Paramount Film Distributing Corp.

Fink & Miller, Chicago, Ill., for Elmer Balaban, Harry Balaban and H & E Balaban.

Springer, Bergstrom & Crowe, Chicago, Ill., for Twentieth Century-Fox Film Corp.

CAMPBELL, District Judge.

This is an action asserting alleged violations of the "Anti-Trust Laws of the United States", 15 U.S.C.A. § 1 et seq. It is alleged that the respective parties are, and have been, engaged in the business of exhibiting or producing and distributing motion picture films. The complaint was filed on July 10, 1953.

The matter is now before the Court on the defendants' motion to limit the plaintiff's proof of the alleged conspiracy. The controversy concerns itself with the query of what effect, if any, the pendency of the case entitled United States v. Paramount Pictures, Inc., 85 F. Supp. 881, in the United States District Court for the Southern District of New York, has on the applicable statute of limitations. This statute, Ill.Rev.Stat. 1951, c. 83, Sec. 15, limits the recoverable period of damages to the two years immediately preceding the filing of the instant complaint unless it can be shown that the pendency of the Paramount case, supra, under Section 5 of the Clayton Act, 15 U.S.C.A. § 16, suspended the running of the statute of limitations in this case. There is no dispute that as to each defendant, except Loew's Inc., the Paramount case has not suspended the running of the statute of limitations; with respect to Loew's, plaintiff argues that the Paramount case did suspend the running of the statute of limitations so as to include a period of damages extending beyond the date on which the Paramount case was filed. For the reasons expressed herein, the plaintiff's argument is manifestly untenable.

Under Section 5 of the Clayton Act, a prior suit brought by the United States to enforce compliance with any of the anti-trust laws, suspends, during the pendency thereof, the running of the statute of limitations in each and every private right of action arising under the anti-trust laws if said private action arises "in whole or in part on any matter complained of in said" prior suit instituted by the United States.

The crucial language of Section 5, so far as pertinent here, is the proviso that the private action must be based "in whole or in part on any matter complained of" in the prior Government suit. Thus considered and viewed against the instant complaint, the present action appears in no sense to be grounded upon the same matters of which the Government complained in the Paramount case. The instant complaint does not allege that final decrees were entered against any of the defendants in the Paramount case; it is not alleged that the present action is based, in whole or in part, on the matters complained of in the Paramount case; nor is it alleged that, as a consequence, these prior decrees are admissible under Section 5 as prima facie evidence of the matters complained of in this case. Furthermore, it is not alleged that the instant defendants' actions are a part of any national scheme or conspiracy which might have an impact on the Chicago area. It is merely alleged in paragraphs 19, 20, and 21 of the complaint that the defendants entered into a conspiracy to fix prices and control the exhibition of motion pictures in the Chicago area in order to exclude exhibitors such as the plaintiff from competing with Balaban & Katz; that the defendants set up admission prices higher than plaintiff was able to charge and if plaintiff charged a price lower than that fixed by the defendant, no films would be made available to the plaintiff by the defendants; and that the defendants, in order to exclude the plaintiff from competing with Balaban & Katz, discriminated against the plaintiff by making choice film available to Balaban & Katz and preventing plaintiff from exhibiting such films when they were being shown at Balaban & Katz theatres. No overt acts or dates are specified except that the contents of two letters, dated August 8 and December 7, 1951, are set forth in paragraph 21. It is also worthy of note that the plaintiff fails to allege that the asserted conspiracy was a continuing one and fails to allege continuing damages; indeed, in this regard, no equitable relief, but merely damages, is sought.

It is quite apparent, therefore, from even the most cursory examination of the instant complaint, that there has been no attempt to connect the matters complained of in the Paramount case with the violations charged in the instant case. If the matters of which the plaintiff complains were a part, in any degree, of the violations charged in the Paramount case, then it was incumbent on the plaintiff to charge this with sufficient particularity so that this might be readily ascertained from a reading of the complaint and not from resort to guesswork or speculation on what the plaintiff did or did not intend. See Steiner v. 20th Century-Fox Film Corp., Court of Appeals, 9 Cir., 232 F.2d 190. The rules of pleading have not been reduced to the degree where the facts necessary, in whole or in part, to the plaintiff's case are left for surmise and conjecture. Finding no such similitude or duplication of charges between the Paramount case and the case at bar, I hold that under the instant complaint the plaintiff cannot avail himself of the advantages of Section 5 of the Clayton Act, 15 U.S. C.A. § 16. Therefore, the two-year period of damages applies to all of the instant defendants.

There is, however, an equally compelling reason that prompts my holding that the Paramount case has not suspended the running of the statute of limitations as to the defendant Loew's Inc. Counsel for the plaintiff argues that the Paramount case "ceased to pend" as to Loew's Inc. when a decree was entered against Loew's on February 7, 1952, a date well within two years prior to July 10, 1953 when the instant complaint was filed. Counsel for Loew's argue that, as to Loew's, the Paramount case "ceased to pend", for purposes of Section 5, either on June 5, 1950, or on October 16, 1950, both dates being sufficiently beyond two years prior to July 10, 1953. On June 5, 1950, the Supreme Court, Loew's, Inc., v. U. S., 339 U.S. 974, 70 S.Ct. 1031, 94 L.Ed. 1380 affirmed the decree entered against Loew's on February 8, 1950, and on October 16, 1950, the Supreme Court, 340 U.S. 857, 71 S.Ct. 69, 95 L.Ed. 627 denied Loew's a rehearing. Both the February 8, 1950 and February 7, 1952 decrees have been presented to the Court and marked as exhibits A and B, respectively.

In support of his contention, plaintiff's counsel relies almost entirely on a statement taken from Sun Theatre Corp. v. R.K.O. Radio Pictures, 7 Cir., 213 F. 2d 284. In this opinion, Judge Lindley states at page 289:

"This litigation United States v. Paramount, which resulted in a decree against all defendants, was finally terminated as to all on February 7, 1952, when a decree was entered against Loew's Incorporated."

Observing, but not deciding, that there might be a substantial difference in meaning between the word "terminated" and the word "pendency" as the latter word is used in Section 5 of the Clayton Act, and considering that any statement in the Sun case to the effect that the Paramount case ceased to pend as to Loew's on February 7, 1952 would be obiter dicta, a study of the February 8, 1950 and February 7, 1952 decrees would seem to me to be the most logical and intelligent manner in which to approach the problem presented.

The 1950 decree was entitled "Final Decree". Its purpose was to adjudicate the issues that were left open on remand to the District Court by the Supreme Court's 1948 decision, United States v. Paramount, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, which affirmed in part and reversed in part the District Court's 1946 ...