McLaughlin, Hastie and Ganey, Circuit Judges.
By McLAUGHLIN, Circuit Judge:
This is an anti-trust suit which was dismissed summarily prior to trial.
A related action between substantially the same parties and covering an earlier time period had been tried before the same judge who had directed a verdict in favor of the defendants. This court affirmed that judgment. Certiorari was thereafter applied for on behalf of the appellant plaintiff. While that application was pending, the present litigation was called by said judge for pre-trial. From the record it is evident that he felt there had been some criticism of the pre-trial proceedings in the first case (called Viking I) and was anxious that there be no occasion for adverse comment with respect to the pre-trial in this second proceeding (Viking II). Plaintiff had local counsel of record, Mr. Sawyer. It was also represented by Messrs. Williams and Ungar of Washington, D.C.; in addition Mr. Straub was personal attorney for the president of plaintiff, Mr. Sley. On July 10, 1963, the judge wrote Mr. Sawyer, with a copy to all counsel, saying:
"In view of the decision of the Circuit Court of Appeals, is it your intention to proceed further with this case? If so, please advise me within the next several weeks at which time I will arrange a conference with all counsel to determine how we shall proceed with discovery by all counsel."
Mr. Sawyer replied by letter dated July 17, 1963 as follows:
"I am informed that my client intends to proceed with the above case (that is, the second Viking case) but also intends to seek a writ of certiorari with respect to Viking Theatre Corporation v. Paramount Film Distributing Corp., et al., No. 13656, Court of Appeals, and therefore request that no action be required of it pending the disposition of the petition by the Supreme Court of the United States."
The court replied to Mr. Sawyer the next day, July 18, 1963, saying inter alia as to Mr. Sawyer's previous letter, "As I read the letter you propose to try the second case regardless of the outcome of your petition for certiorari in the first case."
The court asked that all counsel attend a pre-trial conference on August 21, 1963.
Answering the above Mr. Sawyer wrote the court on August 7, 1963 telling of a discussion he had had, not with the plaintiff, but with Mr. Williams. He said:
"I have had some further discussion about this case with Edward Bennett Williams, Esquire, of Washington, D.C. and his associates, who are now representing the plaintiff and who are preparing the appeal to the Supreme Court. I am authorized to state that if the Supreme Court does not grant certiorari my client would not feel that he has sufficient grounds to proceed with the above case unless new evidence, hitherto unknown to us, were to come to light.
"Naturally we will take such steps or attend such pre-trial proceedings as Your Honor directs."
Mr. Ungar of Mr. Williams' firm was present at the conference on August 21st. He did not in any way question Mr. Sawyer having limited his statement to the situation arising "if the Supreme Court does not grant certiorari * * *." He did have some remarks with respect to the type of new evidence referred to by Mr. Sawyer. He thought "If certiorari is granted there can be a considerable problem. It would seem to me that it might be a good idea to cope with that problem if and when it should arise in view of the statistical likelihood that certiorari will be denied, since nine out of ten are denied; and if that happens it will ...