which would supply that setting. On the issues of conspiracy and monopoly Vogelstein is still relying on the allegations contained in 'Vogelstein #1' and we have earlier determined that on those issues, for the period covered by 'Vogelstein #1' (1943-1949), he is now precluded.
The Court in Lawlor found during the period 1943-1949: that National Screen did not monopolize nor attempt to monopolize (Conclusion of Law 2); that none of defendants conspired with each other (Conclusion of Law 3); that National Screen was in competition with plaintiffs (Finding of Fact 126); that National Screen made standard accessories available to twenty-four sub-licensees, eleven of whom were not parties to the Allied settlement (Finding of Fact 115); that there was nothing to indicate that plaintiffs could not manufacture or obtain the right to manufacture or fabricate any kind of accessories, in fact poster dealers throughout the United States other than plaintiffs manufactured and distributed various advertising accessories (Finding of Fact 116). The Court of Appeals, summarizing the findings in Lawlor, stated that 'each of the film companies involved in this suit entered into the contracts (with National Screen) for a good and sufficient economic reason, namely to terminate an unprofitable feature of its business'. Lawlor v. National Screen Service Corporation, 270 F.2d 146, 151 (3rd Cir. 1959). Finally, by 1952, National Screen was operating under non-exclusive licenses, and this was certainly the case after 1957 (supra, p. 1917).
That the refusal to supply accessories to Vogelstein is insufficient to upset the foregoing basic findings is apparent from the following statement by the Court of Appeals in Lawlor v. National Screen Service Corporation, 270 F.2d 146 (3rd Cir. 1959), at pp. 154-155:
'Plaintiffs have never attempted to obtain from any of the film companies licenses under which they themselves would manufacture accessories and, in fact, have expressly stated that they do not desire such licenses. In the absence of such demand upon the part of plaintiffs, the courts have consistently held that there can be no recovery in an antitrust action.
'It is abundantly clear to this court that the plaintiffs, by their own choice, are nothing more than jobbers in the field of standard accessories, and thus come within the purview of cases involving exclusive dealerships such as Locker v. American Tobacco Co., 2 Cir., 1914, 218 F. 447 at page 450, where it was stated: 'We are unable to discover anything illegal in a manufacturer of tobacco disposing of his goods to a jobber to sell to retailers, or, if he deems it advisable, to change his policy, and sell direct to the retailer himself. Why may he not do so? One who desires to become a jobber has no right to complain because the manufacturer chooses another to do this work, unless the manufacturer owes some duty to consign his product, or a part of thereof, to him."
The above enumeration of the deficiencies in the Lawlor case guides our evaluation of Vogelstein's present attempt to supply those deficiencies. The single additional allegation in the amended complaint avails him little in that regard.
The amended complaint does not reveal any attempt by Vogelstein to secure a license for himself, nor any indication that such a license could not be obtained. It refers still, by incorporation of previous pleadings, to 'exclusive' licenses, a situation which no longer exists. No facts are averred to meet the statement by the Court of Appeals that National Screen may refuse to supply all poster dealers including Vogelstein.
We cannot view this complaint in a vacuum. It is part of a continuum of litigation between the parties. We are bound to consider the Lawlor adjudication and the stipulation. Cf. Poster Exchange, Inc. v. National Screen Service Corporation, 198 F.Supp. 557 (D.C.N.D.Ga.1961).
For the foregoing reasons the motions to dismiss the complaint and the amended complaint will be granted.
In view of the ruling on the motions to dismiss it is unnecessary to reach the issue raised by defendants as to security for costs.