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