Petition — Exhibitors Poster Exchange, Inc. v. National Screen Service Corp.

ii

Su), - Court, U. S.

r~ FILED

| MICHAEL RODAK, JR., CLERK

mn

APR 11 1977,

3u the |

Supreme Court of the Anited States

OCTOBER TERM, 1976

NO. ~6°1392

EXHIBITORS POSTER EXCHANGE, INC.,

Petitioner

versus

NATIONAL SCREEN SERVICE CORPORATION,

COLUMBIA PICTURES CORP., METRO-GOLDWYN-

MAYER, INC., PARAMOUNT FILM DISTRIBUTING

CORP., TWENTIETH CENTURY-FOX FILM CORP.,

UNITED ARTISTS CORPORATION, UNIVERSAL FILM

EXCHANGES, INC., WARNER BROTHERS DISTRIBUT-

ING CORP.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT __

HENICAN, JAMES & CLEVELAND

C. ELLIS HENICAN, JR.

4440 One Shell Square

New Orleans, Louisiana 70139

Telephone: (504) 581-7575

Attorney for Petitioner

—— OOO |_| ee

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Appendix C - Excerpts from Transcript......

Appendix D - Judgment of District Court... .

Appendix E - Petition for Rehearing........

Appendix F - Petition for Rehearing Denied ..

Appendix G - Statutes Involved............

PAGE NO.

ii

LIST OF AUTHORITIES

Lawlor v. National Screen Service Corp.,

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Lawlor v. National Screen Service Corp.,

a SE GE SU oc ce ceesceetonsesess

PAGE NO.

2,5

PE i sh ERE ee ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

EXHIBITORS POSTER EXCHANGE, INC.,

Petitioner

versus

NATIONAL SCREEN SERVICE CORPORATION,

COLUMBIA PICTURES CORP., METRO-GOLDWYN-

MAYER, INC., PARAMOUNT FILM DISTRIBUTING

CORP., TWENTIETH CENTURY-FOX FILM CORP.,

UNITED ARTISTS CORPORATION, UNIVERSAL FILM

EXCHANGES, INC., WARNER BROTHERS DISTRIBUT-

ING CORP.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

The Petitioner herein, Exhibitors Poster Exchange, Inc.,

respectfully prays that a writ of certiorari issue to review

the opinion and judgment of the United States Court of

Appeals for the Fifth Circuit entered in this proceeding on

December 10, 1976.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 543 F.

2d 1106, and is reproduced at Appendix A, infra. p. A-1.

2

The Judgment of the Court of Appeals is reproduced at

Appendix B, infra. p. A- 4. There was no writtten opinion

by the United States District Court for the Eastern District

of Louisiana. The trial Judge stated orally his reasons for

rendering judgment for respondents. A copy of the trans-

cript of such reasons is reproduced at Appendix C, infra.

p. A-7 . Acopy of the judgment of the Distirict Court is

reproduced at Appendix D, infra. p. A-10.

JURISDICTION

The judgment of the Court of Appeals was entered on

December 10, 1976, (Appendix B, infra. p. A- 4) and pe-

titioner’s timely application for a rehearing (Appendix E,

infra. p. A- 12) was denied on January 10, 1977, (Appendix

F, infra. p. A-15) This petition for certiorari iis being filed

less than 90 days from the date last abovementioned. The

jurisdiction of this Court is invoked under 28 U.S.C. Section

1254(1).

QUESTIONS PRESENTED

1. Whether a summary judgment entered without any

trial on findings of fact can have collateral estoppel

effect.

2. Whether the decision of the court below giving collat-

eral estoppel effect to a summary judgment, has the

effect of undermining enforcement of the federal

antitrust laws.

3. Whether the decision below is in conflict with the

opinion delivered by the court in the case of Lawlor

3

v. National Screen Service Corp., 349 U.S. 322

(1955).

STATUTES INVOLVED

Sections 1 and 2 of the Sherman Act, 26 Stat. 209

(15 U.S.C. 731 and 737 (15 U.S.C. Sections 15 and 16) are

reproduced at Appendix G, infra. p. A-16.

STATEMENT OF THE CASE

This is an action by Petitioner for treble damages and in-

junctive relief for alleged violation of sections 1 and 2 of

the Sherman Antitrust Act. The action was commenced in

the United States District Court for the Eastern District of

Louisiana under sections 4 and 16 of the Clayton Act, upon

which jurisdiction of the said District Court is based (See

Appendix G, infra. p. A-16).

The court below dismissed this action on the ground that

a summary judgment, dismissing a prior action between the

same parties, entered without any trial or findings of fact,

had the collateral estoppel effect of requiring entry of a

summary judgment of dismissal of this action.

ARGUMENT

In Lawlor v. National Screen Service Corp., 349 U.S.

322, 326, this Court, quoting with approval a statement

made by the Court of Appeals, said:

‘‘No question of collateral estoppel by the former

judgment is involved because the case was never

tried and there was not, therefore, such finding

4

of fact which will preclude the parties to that liti-

gation from questioning the finding thereafter.”

It is therefore correct to say that the judgment entered

by the court below in this case is in plain conflict with an

opinion written by this Court.

CONCLUSION

It is therefore submitted that this petition for issuance

of a writ of certiorari to review the opinion and judgment of

the United States Court of Appeals for the Fifth Circuit en-

tered in this case on December 10, 1976, should be granted.

Respectfully submitted,

FRANCIS T. ANDERSON

1007 Church Lane

Yeadon, Pennsylvania 19050

GLENN B. HESTER

Commerce Building

Augusta, Georgia 30902

C. ELLIS HENICAN, JR.

OF COUNSEL:

HENICAN, JAMES & CLEVELAND

4440 One Shell Square

New Orleans, Louisiana 70139

Telephone: 581-7575

5

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Petition for a

Writ of Certiorari have been served on Phillip A. Wittmann,

1000 Whitney Bank Building, New Orleans, Louisiana

70130; Walter S. Beck, 40 West 57th Street, New York,

New York 10019; and Gibbons Burke, One Shell Square

70139, on this 5th day of April, 1977.

C. ELLIS HENICAN, JR.

A-l

APPENDIX A

OPINION OF CIRCUIT COURT OF APPEALS - FIFTH

CIRCUIT

EXHIBITORS POSTER EXCHANGE, INC.,

Plaintiff-Appellant

v.

NATIONAL SCREEN SERVICE CORPORATION, et al.,

Defendants- Appellees.

No. 76-2463

Summary Calendar*

United States Court of Appeals, Fifth Circuit

Dec. 10, 1976

Plaintiff in antitrust action appealed from a summary

judgment rendered against it in the United States District

Court for the Eastern District of Louisiana, Alvin B. Rubin,

J. The Court of Appeals held that a previously rendered

summary judgment could have collateral estoppel effect;

and where that precise issue had been decided against

plaintiffs on a prior appeal in an earlier lawsuit, the defen-

dants’ motion for damages for frivolous appeal would be

granted and the district court required to determine the

amount of costs and damages.

Affirmed and remanded.

* Rule 18, 5 Cir.; see /sbe// Enterprises, Inc. v. Citizens Casualty Co. of

New York et al., 5 Cir. 1970, 431 F.2d 409, Part 1.

A-2

1. Judgment 653

Summary judgment could have collateral estoppel effect.

2. Courts 406.9(9)

Federal Civil Procedure 2747

Where only issue raised by appellants had been decided

against them on prior appeal in earlier lawsuit, appellees’

motion for damages for frivolous appeal would be granted

and case remanded to district court to determine amount of

costs and damages to }»2 paid appellees. 28 U.S.C.A. $1912;

Fed. Rules App. Proc. rule 38, 28 U.S.C.A.

3. Courts 403, 404(1)

Court of Appeals did not have jurisdiction to consider

appellees’ motion for injunction prohibiting appellant from

future litigation against them based on same cause of action

where there was no final or otherwise appealable decision

of district court; nor could it be considered application for

exercise of supervisory authority because relief sought was

not in aid of Court of Appeals’ jurisdiction. 28 U.S.C.A.

§§ 1291, 1292, 1651.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before COLEMAN, GOLDBERG and GEE, Circuit

Judges.

A-3

PER CURIAM.

[1] This appeal arises out of antitrust litigation of many

years’ duration. The history of this litigation is outlined in

The Poster Exchange, Inc. v. National Screen Service Corp-

oration, et al., 5 Cir., 1976, 542 F.2d 255 (No. 76-1870,

Nov. 11, 1976, slip opinion p. 6517). Once again the ap-

pellant, Exhibitors Poster Exchange, Inc., urges that a sum-

mary judgment cannot have collateral estoppel effect. The

same argument was urged to us and decided against this

same appellant in Exhibwors Poster Exchange, Inc., v.

National Screen Service Corporation, et al., 5 Cir., 1975,

517 F.2d 110, cert. denied, 423 U.S. 1054, 96 S.Ct. 784,

46 L.Ed. 2d 643 (1976).

We said in that opinion:

“It would be strange indeed if a summary judgment

court not have collateral estoppel effect. This would re-

duce the utility of this modern devide to zero.” 517 F.2d

at 115.

Despite our pronouncement, despite our denials of re-

hearings by panel and en banc, and despite the Supreme

Court’s declining certiorari in this matter, the appellant

nevertheless began yet another lawsuit in the district court

which, upon its termination by summary judgment in favor

of the yet-again appellees, confronts us with precisely the

same issue. In its brief the appellant states that it is re-

litigating the same issue with admitted forlorn hope that we

will overrule our previous decision.

[2] The appellees have filed in this Court a motion for .

A-4

damages for frivolous appeal under Rule 38, F.R.A.P. The

motion is well taken. Appellees have again been required to

file pleadings and brief, incur costs and attorneys’ fees to

protect their interests. These expenses were necessitated

only by frivolous litigation. We remand this case to the

district court to determine the amount of costs and damages

to be paid to the appellees, as provided by 28 U.S.C.$1912.

[3] Appellees have also filed a motion for an injunction

prohibiting the appellant from future litigation against them

based on the same cause of action. The motion is filed of

first instance in this Court. We are without jurisdiction to

consider this request since there is no final or otherwise

appealable decision of the district court. 28 U.S.C.§ $1291,

1292; Wooten v. Bomar, 6 Cir., 1959, 266 F.2d 27. Nor

can it be considered an application for the exercise of our

supervisory authority because the relief sought is not in aid

of our jurisdiction. 28 U.S.C. § 1651.

The judgment of the district court is affirmed and the

case is remanded for a determination of damages and costs.

A-5

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-2463

Summary Calendar

D.C. Docket No. CA 75-2503 ‘'C”’

EXHIBITORS POSTER EXCHANGE, INC.,

Plaintiff-Appellant

versus

NATIONAL SCREEN SERVICE CORPORATION,

ET AL.,

Defendants-Appeilees.

Appeal from the United States District Court for the

Eastern District of Louisiana

Before COLEMAN, GOLDBERG and GEE, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Eastern

District of Louisiana, and was taken under submission by

the Court upon the record and briefs on file, pursuant to

Rule 18;

ON CONSIDERATION WHEREOF, It is now here order-

A-6

ed and adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby, af-

firmed and that this cause be and the same is hereby reman-

ded to the said District Court in accordance with the opin-

ion of this Court;

It is further ordered that plaintiff-appellant pay to defen-

dants-appellees, the costs on appeal to be taxed by the Clerk

of this Court.

December 10, 1976

Issued as Mandate:

A-7

APPENDIX C

EXCERPTS FROM TRANSCRIPT

THE COURT:

Thank you.

I’m going to grant the motion for summary judgment.

It seems to me that the matter is controlled by the

Fifth Circuit Court of Appeals decision in Exhibitors

Poster Exchange, Inc. versus National Screen Service Corp-

oration, 517 Federal Second 110. Taking the position most

favorable to the Plaintiff, which is supported not by affi-

davits or depositions, but by the pleadings as he elaborated,

by the statement of counsel for the Plaintiff this morning,

the Plaintiff contends that illegal acts were performed prior

to the institution of the various prior lawsuits, and those

illegal acts have continued to a time beyond the termination

of the other lawsuits and that damages have been suffered

at a time subsequent to the commencement of the other

lawsuits.

Now, that breaks down into two separate issues. One is

that the Plaintiff may sue for the acts committed after the

last lawsuits on the basis they were illegal; but the legality

or illegality vel non of those self-same acts has been deter-

mined. In the discussion in this regard at Page 114 II of

the Exhibitors Poster Exchange suit deals with that issue.

The whole purpose of the notion of collateral estoppel, as

distinguished from the doctrine of res judicata, is that

while res judicata pertains only to the self-same events and

A-8

the force of a decision on them, collateral estoppel is a

broader doctrine and reaches to similar acts or identical

acts performed at a different time so long as the parties

were the same. ‘‘Collateral estoppel bars a Plaintiff from

assailing the Defendants for proceeding without change

upon the course of conduct previously held lawful against

Plaintiff’s identical attack.’’ That’s at 517 Federal Second

114.

Now, as to whether or not the monopolistic practice

alleged to have continued was lawful or unlawful, collater-

al estoppel bars that claim; if, indeed, the acts were lawful

and now contended to be lawful, then the mere fact that

they caused additional damages would not, of course, give

rise to a new cause of action.

The suggestion is made in the memorandum that collat-

eral estoppel as a legal doctrine is inapplicable if there has

been no trial on the merits of the case. That position is

rejected by the Fifth Circuit in the Exhibitors Poster Ex-

change suit, and I quote from their opinion at Page 1i5:

“We reject out of hand the beguiling but superficial conten-

tion of Exhibitors that neither suit one nor number two can

have any collateral estoppel effect because no summary

judgment can have such effect.’’ Ard then, the Court con-

tinues to explain the reason for its rejection out of hand.

If the Fifth Circuit rejects the argument out of hand of-

ficiary, I must do so. Motion is granted.

Thank, you gentlemen.

MR. WITTMANN: Thank you, Your Honor.

xkxeekek*

A-9

REPORTER'S CERTIFICATE

The undersigned certifies, in his capacity of Official

Court Reporter for the United States District Court, Eastern

District of Louisiana, the foregoing to be a true and correct

transcription of his Stenograph notes during the proceedings

on the 14th day of April, 1976.

New Orleans, Louisiana, this 21st day of April, 1976.

s/ M. H. Gaudet, Jr.

M. H. Gaudet, Jr.,

Official Court Reporter

A-10

APPENDIX D

JUDGMENT OF DISTRICT COURT

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

EXHIBITORS POSTER EXCHANGE, INC.

versus

NATIONAL SCREEN SERVICE CORPORATION, CO-

LUMBIA PICTURES INDUSTRIES, INC., METRO-

GOLDWYN-MEYER, INC., PARAMOUNT PICTURES

CORPORATION, TWENTIETH CENTURY-FOX DIS-

TRIBUTING CORP., UNITED ARTISTS CORPORA-

TION, UNIVERSAL FILM EXCHANGES, INC. and

WARNER BROS. DISTRIBUTING CORPORATION

Filed: April 15, 1976

JUDGMENT

q

The court having previously granted the motion for

summary judgment by defendants,

IT IS ORDERED, ADJUDGED AND DECREED that

there be judgment in favor of defendants, National Screen

Service Corporation, Columbia Pictures Industries, Inc.,

Metro-Goldwyn-Meyer, Inc., Paramount Pictures Corpora-

tion, Twentieth Century-Fox Distributing Corp., United

Artists Corporation, Universal Film Exchanges, Inc. and

Warner Bros. Distributing Corporation, and against plain-

tiff, Exhibitors Poster Exchange, Inc., dismissing plaintiff's

suit at its costs.

A-11

Dated at New Orleans, Louisiana, this 13th i

mn . day of April

s/ Nelson B. Jones

NELSON B. JONES, CLERK

APPROVED AS TO FORM:

s/ Alvin B. Rubin

UNITED STATES DISTRICT JUDGE

Francis T. Anderson, Esq.

Glenn B. Hester, Esq.

C. Ellis Henican, Jr., Esq.

Gibbons Burke, Esq.

Walter S. Beck, Esq.

Phillip A. Wittman, Esq.

A-12

APPENDIX E

PETITION FOR REHEARING

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

EXHIBITORS POSTER EXCHANGE, INC.

Plaintiff-Appellant NO. 76-2463

versus

NATIONAL SCREEN SERVICE CORPORATION,

ET ALS.,

Defendants-Appellees

PETITION FOR REHEARING

It is respectfully submitted that a rehearing should be

granted because of the fact that the Court has not distin-

guished - or even mentioned - the authorities cited in plain-

tiff’s brief.

More fully, plaintiff has cited the Supreme Court case of

Lawlor v. National Screen Service Corp., 349 U.S. 322, and

Restatement of Judgments, sec. 68, Comment C. (See page

5 of plaintiff's original brief.)

Plaintiff contends that the judgment appealed from is

in direct conflict with these authorities, and therefore it

appears that they have been overlooked by the Court.

It is therefore submitted that a rehearing should be grant-

ed in order that the authorities relied on by the plaintiff

may be considered by the Court.

A-13

Respectfully submitted,

FRANCIS T. ANDERSON

1007 Church Lane

Yeadon, Pennsylvania 19050

GLENN B. HESTER

Commerce Building

Augusta, Georgia 30902

s/ C. Ellis Henican, Jr.

C. ELLIS HENICAN, JR.

OF COUNSEL:

HENICAN, JAMES & CLEVELAND

Suite 4440, One Shell Square

New Orleans, Louisiana 70139

Telephone: 581-7575

ATTORNEYS FOR PLAINTIFF-APPELLANT

A-14

CERTIFICATE OF SERVICE _

I certify that copies of the above and foregoing Petition

for Rehearing have been forwarded to opposing counsel by

depositing said copies in the U.S. Mail with proper postage

affixed, on this 22d day of December, 1976.

s/ C. Ellis Henican, Jr.

C. ELLIS HENICAN, JR.

A-15

APPENDIX F

PETITION FOR REHEARING

Filed: January 10, 1977

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 76-2463

EXHIBITORS POSTER EXCHANGE, INC.,

Plaintiff-Appellant

Versus

NATIONAL SCREEN SERVICE CORPORATION, ET AL..,

Defendants-Appellees

Appeal from the United States District Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING

(JANUARY 10, 1977)

Before COLEMAN, GOLDBERG and GEE, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in

the above entitled and numbered cause be and the same is

hereby DENIED.

ENTERED FOR THE COURT:

S/ IRVING L. GOLDBERG

United States Circuit Judge

A-16

APPENDIX G

STATUTES INVOLVED

Sections 1 and 2 of the Sherman Act, 26 Stat. 209, 15

U.S.C. Sections 1 and 2:

Section 1.

Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or commerce

among the several States, or with Foreign nations, is declar-

ed to be illegal. . Every person who shall make any con-

tract or engage in any combination or conspiracy declared

by sections 1 to 7 of this title to be illegal shall be deemed

guilty of a misdemeanor, and, on conviction thereof, shall

be punished by fine not exceeding fifty thousand dollars,

or by imprisonment not exceeding one year, or by both said

punishments, in the discretion of the court.

Section 2.

Every person who shall monopolize, or attempt to mono-

polize, or combine or conspire with any other person or

persons, to monopolize any part of the trade or commerce

among the several States, or with foreign nations, shall be

deemed guilty of a misdemeanor, and, on conviction there-

of, shall be punished by fine not exceeding fifty thousand

dollars, or by imprisonment not exceeding one year, or by

both said punishments, in the discretion of the court.

Sections 4 and 16 of the Clayton Act, 28 Stat. 731 and

737, 15 U.S.C. Sections 15 and 26:

A-17

Section 4.

Any person who shall be injured in his business or pro-

perty by reason of anything forbidden in the antitrust laws

may sue therefor in any district court of the United States

in the district in which the defendant resides or is found or

has an agent, without respect to the amount in controversy,

and shall recover threefold the damages by him sustained,

and the cost of suit, including a reasonable attorney’s fee.

Section 16.

Any person, firm, corporation, or association shall be

entitled to sue for and have injunctive relief, in any court of

the United States having jurisdiction over the parties,

against threatened loss or damage by a violation of the anti-

trust laws, including sections 13, 14, 18 and 19 of this title,

when and under the same conditions and principles as in-

junctive relief against threatened conduct that will cause

loss or damage is granted by courts of equity, under the

rules governing such proceedings, and upon the execution

of proper bond against damages for an injunction improvi-

dently granted and a showing that the danger of irreparable

loss or damage is immediate, a preliminary injunction may

issue: Provided, That nothing herein contained shall be con-

strued to entitle any person, firm, corporation, or associ-

ation, except the United States, to bring suit in equity for

injunctive relief against any common carrier subject to the

provisions of the Act to regulate commerce, approved Feb-

ruary fourth, eighteen hundred and eighty-seven, in respect

of any matter subject to the regulation, supervision, or

other jurisdiction of the Interstate Commerce Commission.