22 F.R.D. 232 | D. Mass. | 1958
Defendants Interstate Theatres Corporation and Milford Realty Corporation, whose connection with this case is alleged to be solely in connection with their operation of the State Theatre in Milford, move for summary judgment on the basis of the facts set forth in the affidavit of Theodore Fleisher, president of both defendants since 1952, and on the depositions of plaintiff Mitchell, operator of the Morse Theatre in Franklin, and of one Howard, president and treasurer of Affiliated Theatres Corporation which bought and booked films for the Morse Theatre from 1941 to 1951.
Defendants’ argument can be briefly summarized as follows. Mitchell’s deposition shows that the sole cause of any damage which he claims he suffered so far as these defendants are concerned was that he was held back in the exhibition of pictures until after the showing of those pictures in Milford. The clearance provisions in effect during the relevant period were as follows: Providence and Milford were entitled to show
Of course, there remains the possibility that while defendants had no express clearance over Franklin, they were parties to an agreement or understanding with other defendants to maintain the Woonsocket and Providence clearances which in practical effect gave Milford a clearance of from fourteen to twenty-eight days over Franklin. Hence the Fleisher affidavit contains averments that defendants, except from the signing of contracts giving them the simple clearance “ahead of Franklin” never acted with or cooperated with any other parties to the action in any act to affect availability of films to plaintiff’s theatre.
Plaintiff has filed counter-affidavit of his counsel with attached copies of cutoff cards of distributors Warner and Loew’s showing playing dates of certain pictures at plaintiff’s and defendants’ theatres and the Stadium Theatre in Woonsocket.
Neither defendants’ affidavit nor plaintiff’s counter-affidavit gives a precise definition of clearance. However, it ■is clear from the briefs of the parties that defendants’ argument is based on the assumption that the clearance period runs from the first showing of the film by the protected theatre, while plaintiff’s view is that clearance runs from the last showing of the film by the protected theatre. Plaintiff’s view appears to be supported by the explanation of clearance given by the court in United States v. Paramount Pictures, Inc., D.C., 66 F. Supp. 323, 341. At least there is a material issue here which the court cannot decide without further evidence.
Moreover, defendants’ whole argument fails if their assumption as to the nature of clearance is incorrect. If Milford’s simple clearance over Franklin means that Franklin can show a picture, not the day after Milford begins to show it, but the day after the last showing of the picture in its Milford run, then the question of whether plaintiff’s showing of pictures was held back by Milford cannot be settled by merely comparing contract provisions, but must be determined by the actual dates when pictures were shown in Milford and Woonsocket. Plaintiff’s counter-affidavit, based on records of two of the several distributors here involved, shows numerous instances where the Milford run of a picture ended substantially later than the time when clearance protection based on the Woonsocket run had expired. In those cases it would be Milford and not Woonsocket which delayed the Franklin showing.
In the light of plaintiff’s counter-affidavit it cannot be said that there is no genuine issue of material fact remaining in the case. Summary judgment must be denied when there is any real doubt as to the facts. Peckham v. Ronrico Corporation, 1 Cir., 171 F.2d 653, 657.
In addition, the averments of the Fleisher affidavit relating to the conspiracy issue are an unsatisfactory basis for a summary judgment. Fed.Rules Civ.Proc. rule 56(e), 28 U.S.C.A., requires that affidavits shall be made on personal knowledge, shall set forth facts and shall show affirmatively that affiant
The motion of defendants Interstate Theatres Corporation and Milford Realty Corporation for summary judgment is denied.