Theatre Time Clock Co. v. Motion Picture Adv. Corp.

• Decision Date: 19 February 1971
• Docket Number: Civ. A. No. 68-1117.
• Citation: 323 F. Supp. 172
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: THEATRE TIME CLOCK CO., Inc. v. MOTION PICTURE ADVERTISING CORP.

323 F. Supp. 172

THEATRE TIME CLOCK CO., Inc. v. MOTION PICTURE ADVERTISING CORP.

Civ. A. No. 68-1117.

United States District Court, E. D. Louisiana, New Orleans Division.

February 19, 1971.

David A. Donohoe of Rowley & Scott, Washington, D. C., and Robert E. Winn, of Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, La., for plaintiff.

Gibbons Burke of Chaffe, McCall, Phillips, Burke, Toler & Sarpy, New Orleans, La., for defendant.

MEMORANDUM OF REASONS

COMISKEY, District Judge.

This case now comes before the Court on the motion of plaintiff, Theatre Time Clock, Co., Inc. TTC to reopen the case, and on the motion of defendant, Motion Picture Advertising Corporation MPA to enforce a settlement agreement. The motions were argued in open court and were taken under submission. The case involves a civil anti-trust suit whereby TTC alleges that MPA was engaged in a scheme to exclude TTC from competition in the selling of motion picture advertising in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1, 2 and Section 3 of the Clayton Act, 15 U.S.C.A. §§ 12, 14, 15. Treble damages and injunctive relief are sought.

The history of the case shows that it was commenced in Chicago, Illinois in 1967. Thereafter, it was dismissed by TTC, reinstituted in Tampa, Florida and then transferred to New Orleans, Louisiana. The record makes clear that settlement discussions were carried on after the case arrived in New Orleans between counsel for MPA, Gibbons Burke, and co-counsel for TTC, Leonard Rosenson and David Donohoe.

From the affidavits submitted by all parties and argument on the motions these undisputed facts emerge: Co-counsel for TTC, Donohoe, met with the president of TTC, William Basle, in September 1970. At that meeting a basis for what would be an acceptable settlement was worked out. Sometime after this meeting Donohoe talked with his co-counsel, Rosenson, to ask Rosenson to solicit an offer of settlement from MPA. Rosenson proceeded to meet with counsel for MPA and asked if MPA would pay "X" dollars which would be acceptable to TTC. On or about October 2, 1970, counsel for MPA telephoned co-counsel for TTC, Rosenson, to offer as a settlement $5,000.00 in exchange for TTC's dropping the suit and executing a release. Co-counsel for TTC discussed the offer of MPA. Immediately thereafter co-counsel Rosenson contacted counsel for MPA that the offer was acceptable. The Court was then advised by counsel for MPA that the case was settled. The Court issued a 60 day dismissal order on October 2, 1970. Two weeks later, on or about October 16, 1970, MPA sent a settlement check to their counsel for $5,000.00.

Thereafter counsel for MPA submitted several copies of a release and a stipulation of dismissal to co-counsel for TTC. On November 2, 1970 co-counsel for TTC, Donohoe, advised counsel for MPA that the release was unacceptable in that it deviated from the original offer of settlement by additionally requiring the president of TTC, William Basle, to sign a personal release and also a warranty that he (Basle) had sole interest in TTC. Co-counsel for TTC then formulated a counter-offer which included Mr. Basle's personal release plus two new conditions. Counsel for MPA rejected this counteroffer and re-submitted the original release but excluded the personal release and warranty. On or about November 5, 1970 co-counsel for TTC, Rosenson, rejected the release and proceeded on November 24, 1970 to move for re-opening the case. Counsel for MPA then moved to enforce settlement.

TTC's basic position is threefold: that no settlement agreement was ever reached; only discussions and negotiations took place. In the alternative they argue that even if there had been a settlement agreement, that it was subsequently terminated at defendant's instance. Finally, it is argued that the agreement is unenforceable because it was never reduced to writing as required by Louisiana law.

The Court begins by recognizing the principle that voluntary settlements of civil controversies are highly favored by courts and a valid settlement agreement once reached, cannot be repudiated by the parties, and after a binding settlement agreement has been made, the actual merits of the settled controversy are without consequence. In addition, the trial court has power to summarily enforce on motion a settlement agreement entered into by the litigants while the litigation is pending before it. Cia Anon Venezolana De Navegacion v. Harris, 374 F.2d 33 (5th Cir. 1967). However, the Court cannot force a settlement on parties where no settlement was intended and the power of summary enforcement is ill-suited to situations presenting complex factual issues and should only be used with problems that are capable of precise resolution. Autera v. Robinson, 136 U.S.App. D.C. 216, 419 F.2d 1197 (1969).

The Court takes the position that the settlement contract was complete by October 2, 1970,...