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,
"Actions for damages for an injury to the
person, or for false imprisonment, or malicious
prosecution, or for a statutory penalty, or for
abduction, or for seduction, or for criminal
conversation, shall be commenced within two years
next after the cause of action accrued."
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.
In Schiffman Bros. v. Texas Co., 7 Cir., 1952, 196 F.2d 695,
the Court of Appeals reviewed its reasoning in Hoskins, and
again reached the Hoskins result. The court stated, 196 F.2d
at page 696:
"It is of no significance that the cause of
action arises under federal statutes. The
decisive factor is that Congress, by its failure
to prescribe a limitation, has provided, by
virtue of the Rules of Decisions Act, 28 U.S.C.A.
§ 1652, that the applicable limitation must be
determined by the state statute as interpreted by
the courts of the state. We are not concerned at
all, then, with anything other than the question of
what statute of limitations of Illinois is
applicable to actions to recover treble damages and
attorneys' fees. That question, we thought and
still think, has been decided by the Supreme Court
of Illinois in holding that such actions are within
the two year statute of limitations. To this
reasoning we adhere."
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 ...