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Jan 23, 1948

FIFTH & WALNUT, Inc., et al.
LOEW'S, Inc., et al.

The opinion of the court was delivered by: RYAN

All eleven defendants move to dismiss the complaint without prejudice.

The stated grounds of the motion are that 'a fairer determination of the issues would be had, at greater convenience to this Court, to the parties and to the witnesses and personnel most directly concerned with this action, if the action were brought in Louisville, Kentucky in the District Court for the Western District of Kentucky.'

 This action is brought by plaintiffs under the 'Sherman Act,' 15 U.S.C.A. 1 to 7, inclusive, and the 'Clayton Act,' 15 U.S.C.A. 12 to 17, inclusive.

 Plaintiff, Fifth and Walnut, Inc., a corporation of the Commonwealth of Kentucky, has its principal office in Louisville, Kentucky. Since December 10, 1943, it has leased and operated the National Theatre located at Fifth and Walnut Streets in Louisville. Plaintiff, Albert J. Hoffman, a resident of Indianapolis, Indiana, has owned the National Theatre since January 20, 1943, from which date to December 10, 1943 he operated the theatre at which time, while continuing in title to the fee, he leased the theatre to Fifth and Walnut, Inc.

 All eleven defendants are engaged in the motion picture industry, as producers, distributors or exhibitors. Nine of the eleven defendants are described in the complaint as distributors. Five of these nine are incorporated under the laws of the State of Delaware -- Loew's Incorporated, RKO Radio Pictures, Inc., Universal Pictures Company, Inc., United Artists Corporation and Republic Pictures Corporation; the remaining four -- Paramount Pictures, Inc., Twentieth Centry-Fox Film Corporation, Columbia Pictures Corporation and Warner Bros. Pictures Distributing Corp. -- are incorporated under the laws of the State of New York. All nine distribute motion picture films throughout the United States and have their principal offices in New York City. Of the two remaining defendants, one -- United Artists Theatre Circuit, Inc. -- is a Maryland Corporation, and the other -- Marcus Loew Booking Agency -- is a New York corporation. The former owns Loew's United Artists Theatre and operates it in conjunction with Marcus Loew Booking Agency, a subsidiary of the defendant, Loew's Incorporated. It is not disputed that all eleven defendants irrespective of the State of their origin transact business and maintain offices in New York City within this district.

 The facts recited herein are alleged in the complaint and for the purposes of this motion only are deemed established by affidavits submitted.

 The complaint alleges that defendants have conspired and agreed together to deprive and have deprived plaintiffs of the right to negotiate for the exhibition and showing of 'first run' pictures at the National Theatre in Louisville.

 The defendants in their answers deny this charge. They allege that their refusal to license pictures for first run at this theatre was prompted solely by economic reasons and sound legitimate business considerations. They say, in explaining any apparent uniformity and similarity in conduct, that they individually and separately arrived at the same conclusion -- that each of them would make more money and realize higher rental if his respective pictures were licensed first run to theatres other than the National. As an affirmative defense defendants plead a one-year statute of limitations effective in Kentucky. Their moving affidavits concerning this defense makes the following comments (pp. 14-15):

 'It is very well established that there is no federal statute of limitations applicable to anti-trust actions brought under the Federal Laws. Therefore, the local statute of limitations should govern this question.'

 'However, a very important subsidiary question has been raised by the answers of these defendants and will be raised at the trial, namely, the question of the Statute of Limitations that is applicable here.'

 And, defendants seek to invoke the doctrine of forum non conveniens.

 Entering upon a determination of the merits of the motion the court is mindful of the admonition, 'But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.' Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843.

 At the very outset the court is led to a consideration of the historical facts of this litigation. The complaint herein was filed on July 11, 1946 and defendants were served in this district within a day or two thereafter. By stipulations, defendants' time to answer was extended and issue was joined by the service of their answers on September 26, 1946. Notice of this motion was first given plaintiffs on May 17, 1947; it was returnable on May 23, 1947 at which time it was marked 'off' the calendar by consent of both sides. It was not returned to the motion calendar and submitted for consideration until the December, 1947, Term.

 The notice of motion was served ten months after the commencement of the action and eight months after the issue was joined. It was not brought on for submission to the court until seven months later, or almost fifteen months after service of answer. This long delay does not impress one as being the course usually taken by defendants who feel that they have been vexed, harassed or oppressed by plaintiffs' ...

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