The opinion of the court was delivered by: Campbell, District Judge.
Plaintiffs, who owned or operated a motion picture theatre
in Chicago, bring this action under Section 4 of the Clayton
Act, 15 U.S.C.A. § 15. They seek treble damages for alleged
violations of the anti-trust laws from thirteen producers,
distributors, or exhibitors of motion pictures. Five defendants
— RKO Radio Pictures, Inc., Paramount Pictures, Inc.,
Paramount Film Distributing Corporation, Balaban & Katz
Corporation, and Publix Great States Theatres, Inc. — have
moved for summary judgment on the ground that this action is
barred, as to them, by the applicable statute of limitations.
Congress has not enacted a statute of limitations expressly
applicable to actions brought under Section 4 of the Clayton
Act. In Hoskins Coal & Dock Corp. v. Truax Traer Coal Co., 7
Cir., 1951, 191 F.2d 912, the Court of Appeals held that in
the absence of such a statute, a federal court must look to
the laws of the state where the cause arises and where the
suit is brought; and, in determining which of several state
laws will control, a federal court is bound by the
interpretation of the state courts.
The Court then cited Ill.Rev.Stat. (1951), c. 83 Sec. 15,
The Court of Appeals noted that the Illinois Supreme Court has
held that actions for treble damages and attorneys' fees,
brought under Illinois statutes, are actions for a "statutory
penalty" and are encompassed by the two-year limitation
prescribed by Section 15. According to the Court, an action
brought under Section 4 of the Clayton Act would be construed
similarly by the Illinois courts; therefore, treble damage
actions under Section 4 are barred two years after accrual by
the Illinois statute.
Nothing more need be said about the applicability of the
Illinois statute. The court has carefully considered
plaintiffs' argument urging disobedience to the Hoskins
mandate, and if the court were at liberty to consider and
decide the question anew, the argument might prevail. Compare
Wolf Sales Co. v. Rudolph Wurlitzer Co., D.C.Colo., 1952,
105 F. Supp. 506. However, under Hoskins and Schiffman, it is the
duty of this court to hold, as it does, that the Illinois
two-year statute of limitations is applicable to actions
brought under Section 4 of the Clayton Act.
One additional factor must now be considered. Plaintiffs
contend that the running of the statute of limitations has
been suspended during the pendency of certain equity suits
brought by the United States against some of the defendants.
Those suits are United States v. Balaban & Katz Corporation et
al., filed December 15, 1928 (N.D.Ill., Equity No. 8854) and
United States v. Paramount Pictures, Inc., et al., filed July
20, 1938 (S.D.N.Y., Equity Nos. 87, 273). Apparently, the
instant action is based in part upon matters complained of in
the government suits. Section 5 of the Clayton Act, 15
U.S.C.A. Sec. 16, therefore suspended the running of the
statute of limitations during the pendency of those suits.
The record shows, however, that decrees were entered in each
of the government suits more than two years prior to the
commencement of this action. In the Balaban & Katz case, a
decree was entered as early as 1932; and plaintiffs' brief
indicates that the last modification of that decree was made
in 1940. In the Paramount Pictures case, a consent decree
applicable to defendant RKO Radio Pictures was entered on
November 8, 1948, and another consent decree applicable to the
defendant Paramount companies was entered on March 3, 1949.
Modifications of the Paramount Pictures decrees were made
Plaintiffs contend that the Balaban & Katz and the Paramount
Pictures proceedings were pending within two years prior to
June 29, 1951, the date the complaint in this action was
filed. This contention is based upon several provisions in
each of the decrees which reserve the jurisdiction of the
respective trial courts. Paragraph VIII of the RKO decree, for
"Jurisdiction of this cause is retained for the
purpose of enabling any of the parties to this
consent decree to apply to the Court at any time
for such orders or direction as may be necessary
or appropriate for the construction, modification
or carrying out of the same, for the enforcement
or compliance therewith, and for the punishment
of violations thereof, or for other or further
Similar provisions are contained in each of the other decrees.
Plaintiffs argue that the retention of jurisdiction by the
trial court in each of the government suits amounts to a
"pendency" of each suit within the meaning of that term in
Section 5 of the Clayton Act. According to plaintiffs'
construction of Section 5, a government suit remains pending
even after entry of final judgment, so long as there is a
possibility, however remote, that a court might modify the
terms of the judgment. This court is not willing to accept
such a construction of the Section.
It is the opinion of the court that the pendency of a
government suit ends (1) when final judgment has been entered
after trial and appellate proceedings are concluded, or (2)
when final judgment is entered by consent of the parties. Any
other construction of Section 5 would lead to long, and in
some instances permanent suspensions of all statutes of
limitation. Congress could not have intended such a result.
Since this action was commenced more than two years after
the pendency of the aforementioned government suits, and since
this action was commenced more than two years after the
alleged unlawful acts by the movants occurred, the motions of
RKO Radio Pictures, Inc., Paramount Pictures, Inc., Paramount
Film Distributing Corporation, Balaban & Katz Corporation, and
Publix Great States Theatres, Inc., for summary judgment are
granted, and judgment is hereby entered in favor of each of
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