Taylor v. Portland Paramount Corporation, 21334.

Decision Date19 October 1967
Docket NumberNo. 21334.,21334.
Citation383 F.2d 634
PartiesElizabeth TAYLOR, Appellant, v. PORTLAND PARAMOUNT CORPORATION, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Bruce M. Ramer, Gang, Tyre, Rudin & Brown, Los Angeles, Cal., Kell & Alterman, Portland, Or., for appellant.

Clifford N. Carlsen, Jr., King, Miller, Anderson, Nash & Yerke, Portland, Or., for appellee.

Before POPE, JERTBERG and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

Taylor appeals under 28 U.S.C. § 1292 (b) from an order denying her motion to quash service of summons upon her. We reverse. The opinion of the District Court is reported in Portland Paramount Corp. v. Twentieth Century-Fox Film Corp., D.Or., 1966, 258 F.Supp. 962, and this opinion assumes that the reader is familiar with it.

Two questions are presented, both involving the Oregon "long arm" statute, ORS § 14.035, enacted in 1963. These are, whether Taylor's activities bring her within the terms of the statute, and whether, if they do, she is thereby deprived of due process as guaranteed by the Fourteenth Amendment to the Constitution of the United States, by being required to defend this action in Oregon.

The Oregon long arm statute provides, in pertinent part:

"Jurisdiction arising out of certain acts in this state.
(1) Any person * * * whether or not a citizen or a resident of this state, who, in person or through an agent, does any of the actions enumerated in this subsection, thereby submits such person * * * to the jurisdiction of the courts of this state, as to any cause of action or suit or proceeding arising from any of the following:
(a) The transaction of any business within this state;
(b) The commission of a tortious act within this state; * * *."

The trial court was of the opinion that the allegations of the complaint showed, on Taylor's part, the "commission of a tortious act within" Oregon. The court also thought that there was shown the "transaction of * * * business within" Oregon by Taylor, but did not base its decision on that ground. Here, appellee seeks to sustain the order on both grounds.

We first restate the facts, as we are not entirely satisfied with the trial court's statement of them. Taylor was served with process in California. She is not a resident or citizen of Oregon and has never been there. The case against her is stated in the third and fourth causes of action in the complaint. (The first two are against Fox1 alone).

The third cause of action sounds in tort. The allegations are as follows: In 1960, Taylor and Fox entered into a joint venture to produce and distribute the proposed film "Cleopatra." Taylor was to and did play the title role, and one Richard Burton was to and did act in a co-starring role. Fox was to and did distribute the picture. Taylor was to receive a share of the receipts from distribution. Fox, in 1963, made a contract with appellee,2 licensing the latter to show the picture, and received from appellee a non-returnable film rental of $175,000. As a result, appellee acquired valuable exhibition property rights in the picture. Taylor knew this, and knew that those rights directly depended on the success of the picture in attracting the public to see it. The complaint continues:

"IV
"Defendant Elizabeth Taylor is a well known motion picture actress, and at all times since she was engaged to appear in `Cleopatra\' has known that her acts, conduct and deportment have and do receive wide attention, notice, notoriety and publicity with the worldwide public in general and in particular with the worldwide motion picture going public, and that most especially her acts, conduct and deportment both during the filming of `Cleopatra\' and while it was being exhibited at theaters, in association with another member of the cast of `Cleopatra\', or in any other way associated with `Cleopatra\', would and did receive wide attention, notice, notoriety and publicity which is associated in the eyes of the worldwide public and in particular with the worldwide motion picture going public, including the motion picture going public in the area of plaintiff\'s theatre, directly with `Cleopatra.\'
* * * * * *
"VI
"Defendant Elizabeth Taylor, individually and jointly with Richard Burton, has, pursuant to, in furtherance of, and during the period of her joint venture or joint ventures and contract or contracts with defendant Fox, upon information and belief, knowingly, intentionally, willfully, maliciously and negligently, continuously since the early part of the year 1962 to the close of plaintiff\'s exhibition of `Cleopatra,\' interfered with and injured plaintiff\'s exhibition property rights and business interests, and the enjoyment of such rights and business interests, without justification and without serving any legitimate business interests, and has acted, and has induced Richard Burton to act, in willful, wanton, malicious and negligent disregard of the exhibition property rights and business interests of plaintiff by, among other things:
(a) Her notorious and scandalous conduct with Richard Burton while, to public knowledge, each was married to another.
(b) Holding herself up to public opprobrium, ridicule, and scorn.
(c) Public statements to the effect that `Cleopatra\' is of an inferior quality.
(d) Engaging in the acts set forth in subsections (a), (b) and (c) above and inducing Richard Burton to engage in the acts set forth in subsections (a) and (b) above during the periods of production, distribution and exhibition of `Cleopatra,\' all of which activity was thereby closely associated with `Cleopatra\' in the eyes of the public.
"VII
"The acts of defendant Elizabeth Taylor, individually and jointly with Richard Burton, as set forth in paragraph VI above, have directly and proximately injured plaintiff\'s exhibition property rights and business interests in that the conduct of defendant Elizabeth Taylor and the notorious and adverse publicity resulting therefrom has been associated in the eyes of the public directly with `Cleopatra,\' with the result that attendance at the exhibition of `Cleopatra\' has substantially diminished, and proceeds that would have been realized by plaintiff but for the acts of defendant Elizabeth Taylor have been lost."

Damages are alleged to exceed $40,000.

The fourth cause of action sounds in contract. It repeats the same allegations as to the joint venture for production and distribution of the picture. It then alleges that the agreements made by Taylor and Fox were intended to be for the direct benefit of exhibitors, including appellee, and included provisions establishing (paragraph II):

"(a) The duty of defendant Elizabeth Taylor to abide by and observe reasonable and customary rules, directives, regulations and orders for her conduct and deportment during the course of the production of `Cleopatra.\'
(b) The duty of defendant Elizabeth Taylor to perform her services with due diligence, care and attention.
(c) The duty of defendant Elizabeth Taylor not to conspire with or induce others to breach their agreements faithfully to perform their services in the production of `Cleopatra.\'
(d) The duty of defendant Elizabeth Taylor to conduct and deport herself, both during and subsequent to the production of `Cleopatra,\' including the period of road show exhibition, in keeping with good taste and morals in order not to depreciate the commercial value of `Cleopatra.\'"

It is then alleged:

"Upon information and belief, defendant Elizabeth Taylor has willfully breached the express and implied terms, conditions, covenants and warranties of her joint venture or joint ventures and contract or contracts with defendant Fox as set out in paragraph II of this fourth cause of action."

In support of her motion to dismiss for lack of jurisdiction of her person, Taylor filed an affidavit, alleging that she is not a resident or citizen of Oregon, that she has never, in person or through an agent, transacted any business in Oregon, that she has never been in Oregon, and that she never, in person or by agent, entered into a joint venture contract to produce and distribute the picture "Cleopatra."

The actual contracts were also produced and received in evidence. This is what they show:

On August 11, 1960, Fox, by an elaborate written contract, employed Taylor to play the leading role in the projected film "Cleopatra." On August 24, 1960, three written contracts were made. Two Swiss corporations, MCL (which for the purpose of the motion is Taylor) and WAL WA, entered into a joint venture whereby they agreed to participate in producing the film. This joint venture was to terminate upon delivery of the photoplay to Fox. The agreement contemplated the making of the other two agreements. The second agreement of the same date (not in the record, but referred to in the documents) was between Productions (Fox's British subsidiary)3 and the MCL-WALWA venture. It established a second joint venture between these three parties for the production of the film. This is shown by a later agreement between them of September 1, 1961, which is in the record and which supplements and modifies their August 24, 1960 agreement.

The third agreement of the same date, the distribution agreement, was between Fox, Productions and MCL-WALWA. By that agreement, Fox agreed to lend MCL-WALWA $2,500,000 to defray certain production costs, the loan to be secured by a note and a chattel mortgage of the photoplay, and to lend Productions sufficient additional moneys to produce the picture. Productions and MCL-WALWA granted to Fox "for all countries and territories throughout the world * * * the sole and exclusive right to print, reprint, publish, copy and/or vend the Photoplay * * * and to release, distribute, exhibit, sell, lease, rent, license, sublicense, reissue, exploit, advertise, and otherwise use and generally deal in and with the Photoplay. * * *" These rights, by additional provisions,...

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