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COUNTY THEATRE CO. v. PARAMOUNT FILM DISTRIB. CORP

October 4, 1956

COUNTY THEATRE COMPANY, Plaintiff,
v.
PARAMOUNT FILM DISTRIBUTING CORPORATION; Loew's, Inc., Columbia Pictures Corporation; Universal Film Exchanges, Inc., Warner Bros. Pictures Distributing Corporation; RKO Radio Pictures, Inc., Twentieth Century-Fox Film Corporation; United Artists Corporation



The opinion of the court was delivered by: WELSH

1. Defendants' Motion to Dismiss plaintiff's claim under the Robinson-Patman Act, Act of Congress of June 19, 1936, 15 U.S.C.A. § 13, is granted for the following reasons: (a) licensing of motion picture films (which is involved here) is not subject to the provisions of said Act, United States v. United Shoe Machinery Company, D.C., 264 F. 138, affirmed 258 U.S. 451, 42 S. Ct. 363, 66 L. Ed. 708; Hillside Amusement Company v. Warner Bros., D.C.S.D.N.Y.C.A. No. 50-183, November 4, 1953, and New Dyckman Theatre Corporation v. Radio-Keith-Orpheum, D.C.S.D.N.Y., January 25, 1955, 20 F.R.D. 36; (b) said Act requires an injury to competition and under the allegations of plaintiff's complaint it is admitted that the subject of the allegedly discriminatory practices was not a competitor, Chicago Sugar Company v. American Sugar Refining Company, 7 Cir., 176 F.2d 1, Krug v. International Telephone & Telegraph Corporation, CCH.Trade Reg. (Current) par. 68,387, S.D.N.J.1956, 142 F.Supp. 230 and Toulmin Antitrust Law In The United States, Volume V, p. 781 and (c) the actions against the various defendants under said Act involve different transactions and subject matter and should properly be brought against each defendant individually, Rule 20 of the Federal Rules of Civil Procedure, 28 U.S.C. and Baim & Blank, Inc., v. Warren-Connelly Company, Inc., CCH.Trade Reg. (Current) par. 68,388 D.C.S.D.N.Y.1956, 19 F.R.D. 108.

2. Defendants' motion to dismiss the remainder of plaintiff's complaint for the reason that the allegations contained therein fail to state a cause of action under the Antitrust Laws of the United States is denied without comment.

 3. Defendants' motion to strike paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 of plaintiff's complaint, which refers to United States v. Paramount Pictures, 334 U.S. 131, 68 S. Ct. 915, 92 L. Ed. 1260 is granted and leave is hereby granted to plaintiff to file an amended complaint alleging that there was a government action against some of the defendants (naming them), that decrees were entered and that plaintiff intends to rely thereon pursuant to 15 U.S.C.A. § 16(a). *fn1" New Dyckman Theatre Corporation v. Radio-Keith-Orpheum Corporation, S.D.N.Y., C.A.No. 93-398, opinion dated March 1, 1955; Normandie Amusement Corporation v. Loew's, Incorporated, et al., D.C., 140 F.Supp. 257 and Zsirzseri v. Columbia Pictures et al., C.A.No.20,056, E.D.Pa., Judge Kraft's order dated May 21, 1956.

 Judge Dawson's opinion of March 1, 1955 in the New Dyckman case, supra, was addressed specifically to the question of striking references to United States v. Paramount Pictures substantially similar to those in the instant case. His opinion is deemed pertinent and we therefore quote from it extensively:

 The nature of the evidence which plaintiff may produce at the trial is not now known. It may be of such a character that at some stage of the trial, reference to the decree or its admission in evidence may become relevant and proper. The time for the admission of the decree as a matter of evidence and, indeed, the time concerning which any reference to the decree may be made in the presence of the jury are matters for the Trial Judge, or possibly for determination in a pre-trial order.'

 In Zeirzseri v. Columbia Pictures et al., supra, defendants moved to strike portions of plaintiffs' complaint relating to United States v. Paramount Pictures. The alleged damage period involved was subsequent to the date testimony was completed in the Paramount case and subsequent to the decrees. In an order dated May 21, 1956 our associate Judge Kraft granted defendants' motion to strike.

 4. An order pursuant to the preceding opinion will be ...


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