Opposition Brief — Durand v. Simon Productions No. 2, Inc.

Supreme Court of the Anited LbbSiee . stevae,

OCTOBER TERM, 1984

RupDY DURAND AND KOALA PRODUCTIONS, LIMITED,

Petitioners,

v.

SIMON PRODUCTIONS No. 2, INc., SIMON FILM

PRODUCTIONS, INC., MELVIN SIMON PRODUCTIONS, INC.,

MELVIN SIMON, NATIONAL BROADCASTING COMPANY, INC.,

WARNER Bros. INC., VIACOM INTERNATIONAL, INC., MYRON

L. SLOBODIEN, LEROY Bossitt, LoeB & LOEB, JOHN

FRANKENHEIMER, RICHARD B. KAPLAN AND KAPLAN,

LIVINGSTON, GOODWIN, BERKOWITZ & —s

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

PETER NICHOLS*

WEISSMANN, WOLFF, BERGMAN, COLEMAN

& SCHULMAN

9665 Wilshire Boulevard, Suite 900

Beverly Hills, California 90212

Attorneys for Simon Productions No. 2, Inc., Simon Film

Productions, Inc., Melvin Simon Productions, Inc., Melvin

Simon, Warner Bros. Inc. and Viacom International, Inc.

ALFRED I. ROTHMAN

LoeB & LOEB

One Wilshire Building, Suite 1600

Los Angeles, California 90017

Attorneys for Leroy Bobbitt, Loeb & Loeb, Myron L.

Slobodien and John Frankenheimer

JEAN PIERRE NOGUES

MITCHELL, SILBERBERG & KNUPP

11377 W. Olympic Boulevard

Los Angeles, California 90064

Attorneys for Richard B. Kaplan and Kaplan, Livingston,

Goodwin, Berkowitz & Selvin

January 14, 1985 *Counsel of Record

PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

TARE GP BIT 5 cis ccc cect cvccccucccvcnes

COUNTER-STATEMENT OF THE QUESTIONS PRESENTED

COUNTER-STATEMENT OF THE CASE ...............

A. PRELIMINARY STATEMENT ............-2eee00-

B. NATURE OF THE CASE AND COURSE OF PROCEED-

i er Pe Se pe beset ones

©. HO GO ED cn wee ccccsccccsccssecces

1. The Purported Lanham Act Violation ........

2. Disposition of the Lanham Claim at the District

Court and in the Ninth Circuit ..............

3. The Pro Hac Vice Application ...............

REASONS FOR DENYING THE PETITION .............

A. THE DISTRICT COURT AND THE NINTH CIRCUIT

WERE CORRECT THAT THE FACTS PRESENTED BY

PETITIONERS Do NoT AMOUNT TO A VIOLATION OF

ED odie oss cnwds oe ds 0%) bese

B. THERE IS NO MERIT TO PETITIONERS’ CONTEN-

TION THAT DURAND’S DUE PROCESS RIGHTS

PE EE ci oc cndchencneeelabas deavace

C. THIS CASE ls NoT A SUITABLE VEHICLE FOR RE-

VIEW OF ANY ISSUE By THIS COURT ..........

066 essed a owe cb abewde ds skstineeues

or

a |

ii

TABLE OF AUTHORITIES

CASES Page

Autry v. Republic Productions, Inc., 213 F.2d 667 (9th

Cir. 1954), cert. denied, 348 U.S. 858 (1954) ...... ie)

Follett v. New American Library, Inc., 497 F.Supp. 304

GD. T. Tc ccccvvciedertctdeusseisepesse

Geisel v. Poynter Products, Inc., 283 F.Supp. 261

GDR, Te vac ctwadsvevessancvssdemanress

Gilliam v. American Broadcasting Companies, 538 F.2d

TT fe BR | BPTTT eee ror ere ee err 8

Hormel v. Helvering, 312 U.S. 552 (1941) ............ 12

Jaeger v. American International Pictures, Inc., 330

P.Sape. £14 DN. Ss Gta): ccvcscevaczcssccces 8

Leis v. Flynt, 439 U.S. 438 (1979), reh’g denied, 441 U.S.

dt PPP rere 2, 9, 10

Mortellito v. Nina of California, Inc., 335 F.Supp. 1288

GEN: We SUD. bs acciusvecsacnveueereeneranes

McNeilab, Inc. v. American Home Products Corp., 501

F.Supp. 517 (S.D.N.Y. 1980) modified, 501 F.Supp.

ff 8 ke rr rrr ree 8

Norfolk & Western R. Co. v. Beatty, 400 F.Supp. 234 (S.D.

Ill. 1975), aff'd, 423 U.S. 1009 (1975) ............ 9

Rare Earth, Inc. v. Hoorelbeke, 401 F.Supp. 26(S.D.N.Y.

BONED oct pvccvusevscccnonelkeeuutea pee aneres 8

Silverman v. Browning, 414 F.Supp. 80 (D.Conn. 1976),

OTe, 44D UB. FROGS ccscvccscsvnsccnsesees 10

Singleton v. Wulff, 428 U.S. 106 (1976) .............. 12

Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981) ....... 9

Universal City Studios, Inc. v. Sony Corp. of America,

429 F.Supp. 407 (C.D. Cal. 1977) ..........c006- 8

STATUTES

BD Aa. OB oc bi cca vdvncccseeeassseaeueweeeee 7, 8

MISCELLANEOUS

Rule 12(b\1i), Federal Rules of Civil Procedure ....... 2,3

Rule 12(b)(6), Federal Rules of Civil Procedure ....... 3

Rule 56, Federal Rules of Civil Procedure ........... 3

Rule 1, Local Rules of the Central District of Cali-

RUE ov kicccndecces¢estcesesesent eee 7, 10, 11

COUNTER-STATEMENT OF THE QUESTIONS

PRESENTED

1. Should this Court review the determination of the

Central District of California, as affirmed by the Ninth

Circuit, that Petitioners failed to allege a violation of

the Lanham Act?

2. Is there a Constitutional right to be represented pro

hac vice by an out-of-state attorney who does not meet

the local standards for such representation?

(a) Should Petitioners be permitted to raise this issue

in this Court when they have neglected to properly

raise it either before the Ninth Circuit or the

District Court?

COUNTER-STATEMENT OF THE CASE

A. Preliminary Statement

The crux of Petitioners’ Lanham Act claim is that since

1979 Respondents? have conspired in the exploitation of one

version of the motion picture entitled Rudy Durand’s “Tilt”,

which version Durand edited according to some of Respond-

ents requests (hereinafter the “Release version”), rather

than another version which he edited according to his own

taste. At the time of its original distribution, Durand pub-

licly claimed full credit for the Release version and actively

‘Rudy Durand and Koala Productions, Ltd., (hereinafter collec-

tively referred to as “Petitioners”).

"Simon Productions No. 2, Inc., Simon Film Productions, Inc.,

Melvin Simon Productions, Inc., Melvin Simon, National Broadcast-

ing Company, Inc., Warner Bros. Inc., Viacom Internationai, Inc.,

Myron L. Slobodien, Leroy Bobbitt, Loeb & Loeb, John Fran-

kenheimer, Richard B. Kaplan and Kaplan, Livingston, Goodwin,

Berkowitz & Selvin (hereinafter collectively referred to as

“Respondents”).

The listing of parent corporations and subsidiaries for compliance with

» Rule 28.1 appears on the inside back cover of this brief.

—_

2

assisted in its marketing. Petitioners now claim that the use

of Durand’s name in conjunction with the title constitutes a

false representation even though he wrote, directed, pro-

duced and edited the motion picture.

The Central District of California dismissed Petitioners’

first amended complaint for lack of subject matter jurisdic-

tion under Rule 12(b)(1) and denied Petitioners leave to file a

proposed second amended complaint on the ground of

_ futility. The Ninth Circuit affirmed. Petitioners do not claim

that either of these courts misinterpreted the law or misun-

derstood the facts of this case. Indeed, there is no conflict

between the law as applied by either the District Court or

the Ninth Circuit and the law as applied in any other re-

ported decision. Nor do Petitioners claim that this case

presents any question of importance to anyone other than

themselves. Petitioners merely seek another avenue of ap-

peal from the decision of the Central District.*

Petitioners also ask this Court to create a new Constitu-

tional right—the right of a lawyer admitted in one state to

appear before a federal district court situated in another

state. Petitioners claim that the Central District of Califor-

nia violated the Due Process Clause when it denied James

Ortego permission to appear pro hac vice on behalf of Koala

Productions, Limited—-even though Ortego clearly did not

satisfy the Local Rule governing such an appearance in that

district. This Court has already held that there is no Consti-

tutional right to appear pro hac vice and that hence the Due

Process Clause does not apply to this privilege. Leis v.

Flynt, 4389 U.S. 488 (1979), reh’g denied, 441 U.S. 956

(1979). Moreover, Petitioners did not raise this constitu-

tionality issue in either the Central District or in any of their

appearances before the Ninth Circuit and should not be

permitted to raise it here.

*For this reason, unfortunately, Respondents must address the

merits of the case in order to adequately respond to the petition.

3

B. Nature of the Case and Course of Proceedings.

Petitioners filed their original complaint on March 18,

1981 and their first amended complaint on May 4, 1981.

Respondents moved to dismiss the first amended complaint

on May 27, 1981. During the course of Petitioners efforts in

the Ninth Circuit to have Mr. Ortego admitted pro hac vice

and various judges of the Central District disqualified, a

stay of proceedings was in effect. Before the District Court

ruled on Respondents’ motions to dismiss, Petitioners

moved for leave to file a second amended complaint.

On June 30, 1983, the District Court dismissed the first

amended complaint for lack of subject matter jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(1) and denied Petitioners

motion for leave to file a second amended complaint on the

ground that to do so would be futile as it also failed to allege a

Lanham Act violation. Even though it gave Durand the

benefit of directing its analysis principally to the “improved”

proposed second amended complaint, the District Court

found “[tJhat neither raise any federal questions.”

The Ninth Circuit affirmed the District Court’s decision.

Though the Ninth Circuit faulted the District Court for

dismissing the first amended compiaint under Rule 12(b)(1)

after considering the merits, the appellate court found

“ample evidence” to dismiss Petitioners’ action under Rule

12(b)(6) or Rule 56 and therefore affirmed the decision.

C. Statement of Facts.

1. The Purported Lanham Act Violation.

In May 1977, Rudy Durand sold to Simon Productions

No. 2, Inc.* his original motion picture screenplay entitled .

‘As further definition is unnecessary for a determination of the

instant petition, and for simplicity, hereinafter Simon Productions

No. 2, Ine., Simon Film Productions, Inc., Melvin Simon Produc-

tions, Inc. and Melvin Simon will collectively be referred to as

“Simon.”

“Tilt” and Simon agreed to finance the production and dis- .

tribution of a feature motion picture based on that original

screenplay. The parties further agreed that Durand would

produce, direct, select the cast, select the production crew,

select the composer(s) of the musical score and supervise

the editing of “Tilt.” In recognition of Durand’s contribution

to the motion picture, the parties agreed that in exploiting

the motion picture Durand’s name would appear imme-

diately before the title so that it would read as follows:

“Rudy Durand’ Tilt.”

The first preview of “Tilt”, held in August 1978, was not a

success. In September 1978, Simon requested that Durand

make various editing changes in the motion picture, which

changes Durand made. In October 1978, Simon previewed

this second version (the Release version). Based on the

results of this preview Warner Bros. Inc. agreed to try to

distribute the Release version. At the time of its distribu-

tion Durand claimed full credit for the Release version and

was the moving force behind its marketing.° The Release

version opened in April 1979 in ten cities around the coun-

try, but did not perform well. After learning that “Tilt” had

failed, Durand asked Simon for permission to re-edit “Tilt” a

third time. Simon agreed in a letter to Durand that Simon

would screen and analyze this third version and that Simon

would then make the final determination regarding any

future exploitation or distribution of “Tilt.”

*Respondents “Opposition to ‘Motion For Leave To Consider Affi-

davit Of Rudy Durand Correcting Misstatements Made In Oral Ar-

gument On Appeal’” has been lodged with the Clerk of the Court.

Attached to it are various articles from the Houston Post, the St.

Louis Post Dispatch, the Los Angeles Times, the New Orleans Time

Picayune and other newspapers, which articles reflect interviews in

which Durand claims full credit for the Release version.

°A copy of the letter was attached to and incorporated in both the

first amended and the proposed second amended complaints and is

included in the Excerpts of the Clerk’s Record filed with the Ninth

Circuit (“Record”) at 206 and 517.

phase weet

Durand’s third recut of “Tilt” was test-screened in New

York City in fall 1979, but was not well received. In what

subsequent exploitation of “Tilt” there has been, Simon has

used the Release version rather than this third version of

“Tilt.” The gravamen of the petition is that exploitation of

the Release version after the creation of the third version,

which Durand prefers, is a violation of the Lanham Act.’ At

no time has Durand requested that his name be taken off the

screen credits of the Release version of “Tilt” or asked that

said credits be changed in any manner whatsoever.

2. Disposition of the Lanham Claim at the District

Court and in the Ninth Circuit.

The District Court dismissed the first amended complaint

and did not allow Petitioners to file the proposed second

amended complaint. The court found that “Rudy Durand’s

Tilt” was not a false description, representation or designa-

tion as to the Release version or its source.

“Petitioners would be able to state a cause of action

under the Lanham Act if their allegation was that

defendants themselves had recut ‘Tilt’ and then re-

leased it as ‘Rudy Durand’s Tilt. However, the [pro-

posed second amended] complaint itself clearly states

that the ... [Release] version was cut by Durand

himself. ... even if it were true that Durand was

fraudulently induced to cut ‘Tilt’ to Warner's specifica-

™“Petitioners do not contend that the making of the Warner

Bros. version or its immediate exploitation constituted a viola-

tion of the Lanham Act. The violations occurred only after

Durand had been given by Simon, at Simon’s expense, his

contractually authorized final cut and Respondents, with full

knowledge that the final cut was available and was the only

contractually authorized version, nonetheless began to sub-

stitute the Warner Bros. version of “Tilt” for the fully edited

final cut prepared by Durand as his complete statement of his

artistic creation.” Petition at 23.

6

tions, this would not give rise to a Lanham Act viola-

tion, since ‘Tilt’ was not misdesignated as ‘Rudy Du-

rand’s Tilt.’ The movie was released as cut by

Durand. .. . Plaintiffs cannot state a federal claim

under the facts they have presented to this court.”

The Ninth Circuit affirmed.

“The district court dismissed this action for lack of

subject matter jurisdiction. The court, however, con-

sidered the merits of Durand’s Lanham Act claim and

should have evaluated the claim under Rule 12(b)(6)—

failure to state a claim, or Rule 56—motion for sum-

mary judgment. This is not reversible error because

this court can affirm on any basis presented in the

record. [citation omitted] There is ample evidence to

dismiss Durand’s action under Rule 12(b)(6) or Rule

56. . . . To state a claim under [the Lanham Act]... ,

Durand must show that Simon either falsely desig-

nated the origin of Tilt or falsely described Tilt to the

public. Durand has not made that showing. . . . Du-

rand edited, and his talent was the origin of both ver- |

sions of Tilt. Furthermore, Durand advertised, pro-

moted, and helped to distribute the Warner version.

Durand represented it as his own to the public, and he

did not object until the film failed and he discovered

that he still retained final cut authority. There is no

violation of the Lanham Act.”

3. The Pro Hac Vice Application.

In spring 1981, Jim Ortego, an attorney licensed to prac-

tice in Louisiana but not in California, made sworn applica-

tion to the Central District for permission to appear in this

action. The Central District requires that in order to make

such an appearance one must neither reside nor work in the

cn SS NAP

a oe eee

State of California.* Hence, in making his application Ortego

was required to and did swear: “I am not a resident of, nor

am I regularly employed, engaged in business, professional

or other activities in the State of California.” The court, in

apparent reliance upon Ortego’s sworn application, gave its

permission for Ortego to appear pro hac vice. However,

Ortego also filed a “Supplementary Application” in which he

admitted that at the time of his application he was a resident

of California, was regularly employed in California, and was

engaged in business, professional and other activities in

California, and therefore was not eligible to appear pro hac

vice. |

Consequently, when, on April 22, 1981, the court denied

Mr. Ortego’s application for admission pro hac vice, appar-

ently in the interim having reviewed the Supplementary

Application, it properly applied Local Rule 1.

REASONS FOR DENYING THE PETITION

A. The District Court and the Ninth Circuit Were Correct

That the Facts Presented by Petitioners Do Not

Amount to a Violation of the Lanham Act.

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a),

prohibits the use of false designations of origin and false

descriptions in the advertising and sale of goods and serv-

*Rule 1 of the Local Rules of the Central District of California, as

then in effect, made an attorney ineligible for admission pro hac vice if

any of the following was true: (1) he was a resident of California; (2) he

was regularly employed in California; or (3) he was regularly engaged

in business, professional or other activities in California. Pro hac vice

admission to the Central District is now governed by Rule 2.2.3 of the

current Local Rules.

8

ices.” To state a claim under § 1125(a), Petitioners must

of “Tilt” or falsely described “Tilt” to the public.’ The

Release version is, however, Rudy Durand’s “Tilt.” By con-

trast, in Gilliam v. American Broadcasting Companies,

538 F.2d 14 (2d Cir. 1976) and Jaeger v. American Interna-

tional Pictures, Inc., 330 F.Supp. 274 (S.D.N.Y. 1971), the

courts found Lanham violations where defendants mate-

rially altered the artist's work without his permission and

then falsely presented the work to the public as the artist's

own. See, e.g., Follett v. New American Library, Inc., 497

"15 U.S.C. § 112i(a) provides:

“Any person who shall affix, apply, or annex, or use in connec-

falsely to describe or represent the same, and shall cause such

goods or services to enter into commerce, and any person who

shall with knowledge of the falsity of such designation of origin

or description or representation cause or procure the same to be

transported or used in commerce or deliver the same to any

carrier to be transported or used, shall be liable to a civil action

by any person doing business in the locality falsely indicated as

that of origin or in the region in which said locality is situated, or

by any person who believes that he is or is likely to be damaged

by the use of any such false description or representation.”

“Though it is not necessary that the representation be literally

false, the acts of defendant must create a false impression of the

product or its source. Gilliam v. American Broadcasting Com-

panies, 538 F.2d 14, 24 (2d Cir. 1976). Accord McNeilab, Inc. v.

American Home Products Corp., #1 F.Supp. 517, 582 (S.D.N_Y.

1980) modified, 501 F.Supp. 540 (1980); Universal City Studios, Inc.

v. Sony Corp. of America, 429 F.Supp. 407, 410 (C.D. Cal. 1977);

Rare Earth, Inc. v. Hoorelbeke, 401 F.Supp. 26, 38 n.22 (S.D.N_Y.

1975); Mortellito v. Nina of California, Inc., 335 F.Supp. 1288, 1294

(S.D.N.Y. 1972); Geisel v. Poynter Products, Inc., 283 F.Supp. 261,

267 (S.D.N.Y. 1968).

9

F.Supp. 304 (S.D.N.Y. 1980). The decisions of the District

Court and of the Ninth Circuit are consistent with these

cases. Here, Durand consented to the editing demands of

various of the Respondents, took full credit for the Release

version, and then actively participated in its marketing.

Given his extraordinary level of contribution to the Release

version and its distribution, Petitioners have no basis to

claim that Durand’s credit violates the Lanham Act. See

Autry v. Republic Productions, Inc., 213 F.2d 667, 669-70

(9th Cir. 1954), cert. denied, 348 U.S. 858 (1954)."’ There is

no need for this Court to review the Ninth Circuit's decision.

Nor can Petitioners argue that this Court should grant

certiorari because the Lanham issue raised will have far-

reaching precedential impact or because it is an important

issue. Because the facts of this case are convoluted and not

likely to reoccur, only Petitioners would be benefived by this

Court's review of the Ninth Circuit decision.

B. There Is No Merit to Petitioners’ Contention That

Durand’s Due Process Rights Were Violated.

Petitioners do not claim that Local Rule 1 was not applica-

ble to Mr. Ortego, but contend only that Local Rule 1 denies

pro se Petitioner Rudy Durand his due process rights. This

Court has flatly rejected the contention that due process

rights are involved in pro hac vice applications. Leis v.

Flynt, 489 U.S. 438, 441, 443-44 (1979), reh’g denied, 441

U.S. 956 (1979); see also Norfolk & Western R. Co. v. Beatty,

400 F.Supp. 234 (S.D. IIL. 1975), aff'd, 423 U.S. 1009 (1975);

"Indeed, given Durand’s level of contribution to the Release ver-

sion and his agreement with Simon, had Simon omitted his credit

from “Tilt”, Respondents might have been accused of violating the

Lanham Act on the theory of implied reverse passing-off Smith v.

Montoro, 648 F.2d 602, 606-607 (9th Cir. 1981).

10

Silverman v. Browning, 414 F.Supp. 80 (D.Conn. 1976),

affd, 429 U.S. 876 (1976).

Immediately after Mr. Ortego was denied admission,

Petitioners filed, in rapid succession, an ex parte application

to have Mr. Ortego reinstated and an application to have the

trial judge removed or disqualified. In neither of these

motions did the Petitioners challenge the constitutionality

of Local Rule 1. After Petitioners’ applications were de-

nied, Petitioners filed a petition for writ of mandamus to the

Ninth Circuit asking that it disqualify the trial judge and

order Mr. Ortego admitted. Again, their petition did not

challenge the constitutionality of Local Rule 1. While the

Ninth Circuit, on its own motion, requested the Los An-

geles County Bar Association to file an amicus brief on the

constitutionality of Local Rule 1, the court ultimately de-

clined to address that issue because Petitioners failed to

raise it below. (Appendix B to Petition.)

Thereafter, Petitioners filed an ex parte application for

transfer of the case and a supplementary application to have

Mr. Ortego reinstated as an attorney. Petitioners alluded to

the constitutionality issue, but failed to brief or argue it.’ In

subsequent supplemental papers Petitioners stated that

they were “prepared to challenge the constitutionality of

Local Rule 1,” but requested that the court “in the interest

of expediting justice ... order the immediate reinstate-

ment of Jim Ortego as Attorney of Record for corporate

“Indeed, Petitioners admitted in their motion papers that an out-

of-state lawyer does not have a due process right to appear pro hac

vice, citing Leis v. Flynt, supra.

“Petitioners were “({pjrepared, if this Court so determines, to

argue that Local Rule 1 is unconstitutional both on its face and as

applied to the facts of this case.” Ex Parte Application For Transfer,

dated September 4, 1981, and filed with the Central District of

California.

A.

11

plaintiffs in the exercise of the Court's supervisory au-

thority over the admission of attorneys and pursuant to

F.R.C.P. 83.” Petitioners went on to state that to require

them “to argue the constitutionality of Local Rule 1 at a full

Hearing will delay this Court [in] reaching the merits of the

Motion for Preliminary Injunction and cause plaintiffs irre-

parable harm .. .”* Thus, rather than presenting their

constitutional claims, Petitioners in essence requested that

the District Court not consider the constitutionality of Local

Rule 1.

The District Court denied Petitioners applications with-

out any reference to the constitutionality of the Rule.”

Petitioners sought immediate review by the Ninth Circuit,

filing an emergency petition for writs of mandamus and

prohibition on September 29, 1981. This petition nowhere

suggests that Local Rule | is unconstitutional.’ On Sep-

tember 30, 1981, the Ninth Circuit denied the petition

without mentioning Local Rule | or its constitutionality.'’

Petitioners did not raise the issue of the constitutionality

of Local Rule 1 in their appeal to the Ninth Circuit from the

judgment of dismissal. Petitioners, therefore, ask that this

Court become the first court to consider this issue. Peti-

tioners do not explain why they failed to properly raise the

“Petitioner's “Ex Parte Application for Reconsideration” dated

September 14, 1981 and filed in the Central District of California.

“Minute Order of September 11, 1981, Docket No. 66, Central

District of California; Minute Order of September 28, 1981, Docket

No. 78, Central District of California; Order of October 6, 1981,

Docket No. 76, Central District of California.

“Petitioners’ “Emergency Supplemental Petition,” dated Sep-

tember 29, 1981, is on file with the Ninth Circuit.

"Order of September 30, 1981, Docket No. 73, Central District of

Californi

12

issue in the trial court or in any of their appeals to the Ninth

Circuit. Nor do they justify their argument before this

Court that there is a due process right to admission pro hac

vice when they previously admitted in the trial court that

there is no such right. Under these circumstances, there is

no reason to depart from the general rule that a federal

appellate court does not give consideration to issues not

raised below. See, e.g., Singleton v. Wulff, 428 U.S. 106,

120-21 (1976); Hormel v. Helvering, 312 U.S. 552, 556-57

(1941). Petitioners should not be allowed to appeal on one

ground and upon finding that ground unavailing, urge a new

ground as a basis of a certiorari petition before this Court.

C. This Case Is Not a Suitable Vehicle for Review of Any

Issue By This Court.

This is a particularly inappropriate case in which to grant

certiorari because, as is clear from the petition, this is not a

case in v ' ich the Court may rely on Petitioners to present a

clear, concise and accurate picture of the evidence and issues

below. The stream-of-consciousness petition frequently

makes factual assertions unsupported by the record, in-

ferences unsupported by logic, and legal arguments unsup-

ported by law.

=

13

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari to the Ninth Circuit should be denied.

Respectfully submitted,

PETER NICHOLS*

WEISSMANN, WOLFF, BERGMAN, COLEMAN &

SCHULMAN

9665 Wilshire Boulevard, Suite 900

Beverly Hills, California 90212

Attorneys for Simon Productions No. 2, Inc., Simon

Film Productions, Inc., Melvin Simon Productions,

Inc., Melvin Simon, Warner Bros. Inc. and Viacom

International, Inc.

ALFRED I. ROTHMAN

LOEB & LOEB

One Wilshire Building, Suite 1600

Los Angeles, California 90017

Attorneys for Leroy Bobbitt, Myron L. Slobodien,

Loeb & Loeb and John Frankenheimer

JEAN PIERRE NOGUES

MITCHELL, SILBERBERG & KNUPP

11377 W. Olympic Boulevard

Los Angeles, California 90064

Attorneys for Richard B. Kaplan and Kaplan,

Livingston, Goodwin, Berkowitz & Selvin

*Counsel of Record

1. Re: Simon Productions No. 2, Inc., Simon Film Produc-

tions, Inc., and Melvin Simon Productions, Inc.:

The parent company is: MELVIN SIMON PRODUCTIONS, INC.

The subsidiaries are:

SIMON TELEVISION, INC., SIMON FILM PRODUCTIONS,

INC., SIMON DISTRIBUTORS, INC., SIDAN PRODUCTIONS,

INC., DITCH ROAD Music, INc., MEL REN MUSIC, INC.

2. Re: National Broadcasting Company, Inc.:

The parent company is: RCA INC.

National Broadcasting Company, Inc. is a wholly owned

subsidiary.

3. Re: Warner Bros. Inc.:

The parent company is: WARNER COMMUNICATIONS INC.

Warner Bros. Inc. is a wholly owned subsidiary of Warner

Communications Inc.

The subsidiaries of Warner Bros. Inc. are:

AFRAM FILMS IN©., AMERICAN MOTION PICTURE EX-

PORT, ATHWARN MusSICc Co., INC., CHATHAM MUSIC CoR-

PORATION, COLUMBIA & WARNER FILMES DE PORTUGAL,

LTDA., LOMBARDO MUSIC, INC., MANSFIELD MUSIC Co.,

INC., MOTION PICTURE EXPORT ASSOCIATION OF AMER-

ICA, INC., NEW WORLD MUSIC CORPORATION, NINE

STAR MUSIC CORP., RODART MUSIC CORPORATION,

SHUBERT MUSIC PUBLISHING CORPORATION, SUPREME

MUSIC CORPORATION, VERNON MUSIC CORPORATION,

WARNER Bros. (D) (APS), WARNER Bros. MUSIC INTER-

NATIONAL INC., WEILL-BRECHT HARMS COMPANY, INC.,

WESTERN COSTUME Co.

4. Re: Viacem International, Inc.:

The parent compatiy is: VIACOM INTERNATIONAL, INC.

The subsidiaries are:

SHOWTIME/THE MOVIE CRANNEL INC., LIFETIME PRO- |

DUCTICNMS 'NC., SATELLIV« HOLDINGS INC., SHOWTIME/

THRE MovIE CHANNEL (U.% ), ST/TMC PRODUCTIONS

INC , DABLE HEALTH NETVC-”. ‘iC.

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