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BALL v. PARAMOUNT PICTURES

November 8, 1944

BALL
v.
PARAMOUNT PICTURES, Inc., et al.



The opinion of the court was delivered by: SCHOONMAKER

On Motion of Paramount Pictures, Inc., to Dismiss Complaint as to it for Lack of Jurisdiction as to That Company.

On Octber 24, 1944, defendant Paramount Pictures, Inc., filed a motion to dismiss the complaint, or in lieu thereof, to quash the service of summons on that company on the ground: (1) that defendant is a New York corporation, and has neither an agent nor transacts business in Pennsylvania; and (2) that defendant has not properly been served with process in this action.

 This defendant entered a general appearance by his counsel on April 21, 1944; and on the same day filed an answer to the complaint.On August 21, 1944, after the plaintiff had filed an amended complaint, this defendant filed an answer to the amended complaint. In these answers this defendant denies that is has an agent and transacts business in this District; and that plaintiff is entitled to the relief prayed for.

 This defendant admits it was registered to do business in Pennsylvania, but contends that it is suable only in the Middle District of Pennsylvania, where its registered agent resides. There is no merit in that contention. The precise question has been decided by the Circuit Court of Appeals of this Circuit in Dehne v. Hillman Investment Company, 110 F.2d 456, in which Circuit Judge Biggs said at page 458: "* * * The suit at bar is not one based upon diversity of citizenship, but arises out of the laws of the United States. The court below erred, however, in holding that it did not have jurisdiction over the appellee because the appellee was not an inhabitant of the Western District. We are of the opinion that by applying for a certificate of authority and designating the Secretary of the Commonwealth as its attorney for process, the appellee waived the provisions of Section 51 of the Judicial Code as amended, 28 U.S.C.A. § 112, and must therefore be held to have consented to be sued in the District Court for the Western District of Pennsylvania so long as it had liability outstanding in that State. See Neirbo Company v. Bethlehem Shipbuilding Corporation, Ltd. [308 U.S. 165], 60 S. Ct. 153, 84 L. Ed. [167, 128 A.L.R. 1437]."

 In addition to that, we hold that this defendant, by entering a general appearance in this case on April 21, 1944, and answering both the original and amended complaints, has waived all objections to the jurisdiction of this court.

 The defendant's motion to dismiss will be denied. An order may be submitted accordingly on notice to opposing counsel.

 On Plaintiff's Motion for Preliminary Injunction

 This suit, originally involving only Pennware Theatre Corporation, A.N. Notopoulos, and Paramount Pictures, Inc., the owner of all the stock of the Pennware Theatre Corporation, was filed April 12, 1944. The complaint charged defendants with conspiracy in restraint of iterstate commerce in violation of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, and the Clayton Act, 38 Stat. 730, and asked for an injunction restraining defendants from damaging the Penn Theatre located in a building owned by plaintiff in Ambridge, Pennsylvania. The complaint also asked an injunction restraining defendants from removing from said theatre the equipment, fixtures, and furnishings thereof.A temporary restraining order was granted pending hearing on plaintiff's motion for a preliminary injunction. Testimony was taken on this motion on April 21st to April 26th, 1944, with the result that plaintiff withdrew his motion for a preliminary injunction.

 On July 6, 1944, plaintiff asked and obtained leave to bring on the record as additional defendants, R.K.O. Pictures, Inc., Loew's Inc., Twentieth Century-Fox Film Corporation, and Paramount Film Distributing Corporation.

 The same day plaintiff filed an amended complaint, in which he charged all the defendants with a conspiracy in violation of the Sherman Anti-Trust Act and the Clayton Act, to damage and destroy the value of the Penn Theatre on property owned by plaintiff as a motion picture theatre. Among other reliefs, the plaintiff asked a preliminary injunction to enjoin defendants: (1) from withholding or depriving plaintiff of motion picture product on the run formerly enjoyed by the Penn Theatre; and (2) from entering into any contracts or agreements with any other theatre for the licensing of feature product on the run formerly enjoyed by the Penn Theatre.

 On July 24, 1944, we began hearing testimony on plaintiff's motion for a prelinary injunction. On July 25, 1944, after testimony offered by plaintiff was partially completed, an adjournment was had to October 3, 1944, to meet the convenience of counsel, when the taking of testimony by plaintiff was resumed and completed on October 6, 1944. Whereupon, defendants all moved to dismiss plaintiff's motion for a preliminary injunction.

 At final argument on plaintiff's motion for a preliminary injunction, the plaintiff withdrew that part of his motion relating to the furnishing of motion picture films to the Penn Theatre, and pressed only for a preliminary injunction as to furnishing such films to ...


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