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September 1, 1965

Viking Theatre Corporation
Paramount Film Distributing Corporation, et al.

John W. Lord, Jr., Judge.

The opinion of the court was delivered by: LORD, JR.

Opinion and Order

Sur Defendants' Motion to Dismiss

 JOHN W. LORD, JR., Judge:

 This is an action under the antitrust laws by plaintiff, Viking Theatre Corporation, against seven distributors of motion pictures and three exhibitors operating theatres in Philadelphia, alleging a conspiracy to deprive plaintiff of first-run motion pictures during the period November 13, 1956 to November 2, 1960.

 The pleadings have been closed for some time. Although the case has been the subject of several calls of the docket, and three pre-trial conferences, no discovery has taken place. This opinion and order are concerned exclusively with a motion to dismiss which was filed by all defendants under the following circumstances.

 After a review of the notes of testimony taken at three pre-trial conferences in this case, a study of the briefs submitted by the parties, and careful reading of the authorities cited therein, this Court filed an order on June 18, 1965, granting leave to defendants to file a motion to dismiss. All parties defendant thereupon joined in such motion, presently before the Court, which reads as follows:


Defendants move the Court to dismiss the action on the ground that plaintiff is precluded from maintaining it by the stipulation and commitment entered into at the pre-trial conference of August 21, 1963; and on the alternative ground that plaintiff has failed to prosecute the action.

 That motion - duly filed, briefed and argued - is presently ripe for disposition. It will be granted on the grounds stated, in accordance with the findings of fact and conclusions of law which follow.

 For reasons which will appear, it will be necessary from time to time to refer to an earlier case, Civil Action No. 21623 in this Court. Despite a slight difference in the parties defendant, both cases are captioned for practical purposes as Viking Theatre Corporation v. Paramount Film Distributing Corporation, et al., as above. Civil Action No. 21623, which was tried in 1961, has come to be known as Viking No. 1. The present Civil Action No. 28805 is called Viking No. 2. Comparing the two cases, one notes that the allegations of the complaints are similar if not identical; the plaintiff is the same in both cases; and the parties defendant are almost the same. N.T. May 20, 1965, pp. 18, 19. The only significant difference is in the time periods during which the alleged wrongs occurred. That is, Viking No. 2 alleges a damage period which starts where that of No. 1 ended. Finding No. 12 infra.

 The three pre-trial conferences in this case took place before the present Court and Judge and have been reported in full. To avoid repetition of the dates of those conferences, the respective notes of testimony will be indicated by Roman numeral designations to indicate which conference the notes refer to. That is, the hearing of August 21, 1963 (Doc. 18) will be designated "I"; that of May 20, 1965, is to be "II"; and the latest hearing, July 20, 1965, will be shown as "III". Thus, for example, the reference in the preceding paragraph would appear, under the designations as explained, as "II N.T. 18, 19".

 At the third of those hearings, July 20, 1965, the history of those inevitably interrelated cases was recounted by a spokesman for defendants. Plaintiff disagreed with defendants' contentions as to the legal effect of the events recounted in that chronology. But even those vigorous denials did not challenge the accuracy of defendants' presentation of the factual sequences. For convenience, the Court will commence by adapting its findings from statements already in the record. III N.T. 5-32. Chronological order will be observed, insofar as possible.

 Findings of Fact

 1. Viking No. 1 was begun on November 13, 1956. It was an action under the Sherman Act to recover treble damages for the period beginning when the theatre opened, July 2, 1954 down to November 13, 1956.

 2. Viking No. 1 was tried from May 15, 1961 until July 19, 1961, and resulted in a directed verdict in favor of the defendants.

 3. On June 21, 1963, approximately two years later, that judgment was affirmed. Viking Theatre Corp. v. Paramount Film Distributing Corp., et al., 320 F.2d 285 (3rd Cir. 1963).

 4. Shortly thereafter, meeting No. 1 took place on August 21, 1963. The notice given by the Court, the responses of plaintiff to that notice, and the occurrences during that hearing - when plaintiff made what defendants call a "commitment" - are the gist of the present controversy. For that reason, all those matters will be covered in detail in later findings rather than in the present introductory listing of the order of events. I N.T. 5; III N.T. 5.

 5. On September 19, 1963, a petition for certiorari in Viking No. 1 was filed in the Supreme Court of the United States. III N.T. 5.

 6. On December 9, 1963, an order granting certiorari was handed down by the United States Supreme Court, captioned as above. 375 U.S. 939, 11 L. Ed. 2d 270, 84 S. Ct. 347 (No. 481).

 7. On June 15, 1964, the following order was filed by the United States Supreme Court:


PER CURIAM: The judgment is affirmed by an equally divided Court. Mr. Justice Douglas took no part in the decision of this case. 378 U.S. 123, 12 L. Ed 2d 743, 84 S. Ct. 1657.

 8. On October 12, 1964, appellant's petition for rehearing was denied.

 9. The complaint in the present case, Viking No. 2, was filed on November 3, 1960 (which was before the trial of Viking No. 1).

 10. The complaint in Viking No. 2 covered a time period commencing immediately after the end of the damage period unsuccessfully asserted in Viking No. 1.

 11. Specifically, the complaint, filed November 3, 1960 in Viking No. 2 said:


"The period for which damages are claimed in this action is November 13, 1956 to the date of filing the action."

  12. In other respects, as defendants said at III N.T. 6:


" . . . concededly Viking No. 2 is identical in all its averments and in its basic cause of action with Viking No. 1, the only difference being that RKO-Teleradio Pictures was not included as a defendant in Viking No. 2 and there was an averment in Viking No. 2 that Fox Philadelphia Building had discontinued the operation of its theatre at 16th and Market Streets in August of 1959."

  The following tabulation summarizes the foregoing dates and facts: Case Date Commenced Damage Period, From - To Viking No. 1 Nov. 13, 1956 July 2, 1954 to Nov. 13, 1956 Viking No. 2 Nov. 3, 1960 Nov. 13, 1956 to Nov. 3, 1960


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