The opinion of the court was delivered by: Parsons, District Judge.
MEMORANDUM OPINION AND ORDER
I have before me a motion adopted by all defendants for the
entry of a pretrial order pursuant to Rule 16 of the Federal
Rules of Civil Procedure limiting the issue of damages at
trial to those alleged to have occurred after July 29, 1959.
In the alternative, these same defendants renew their motion
under Rule 56(d) of the Federal Rules of Civil Procedure for
partial summary judgment against the plaintiffs as to all
injuries which allegedly occurred prior to July 29, 1959.
On June 3, 1964, I denied defendants' previous motion for
partial summary judgment, and stated:
"It appearing from record that plaintiffs had
notice of alleged violations of antitrust laws by
defendants for purpose of preventing tolling of
applicable statute of limitations, but it not
appearing exactly when this notice attached, a
genuine issue of a material fact remains.
"Wherefore, defendant's motion for summary
judgment on ground that suit is barred by
applicable statute of limitations must be, and
the same hereby is, denied."
Since there are matters before me which were not made
available for consideration by me at the time of my denial of
defendants' original motion, I should consider at this time
their motion as renewed.
The complaint herein, filed July 29, 1963, seeks damages
against defendants under Title 15, U.S.C. § 15, for antitrust
violations allegedly occurring before July 29, 1959. Title 15,
U.S.C. § 15b provides in pertinent part that:
"Any action to enforce any cause of action
under sections 15 or 15a of this title shall be
forever barred unless commenced within four years
after the cause of action accrued. * * *"
There has been considerable confusion concerning the
formulation of the legal standard for determining whether the
statute of limitations bars part of this claim. Substantial
argument was devoted to an interpretation of my previous
ruling. It was cited for the proposition that "notice" and not
"knowledge" is what is required in order to prevent tolling of
the applicable statute of limitations. I cannot ascribe to
that position. I would be hard pressed to give precise
meanings to the words "notice" and "knowledge". Further, I do
not find that case law reflects a firm distinction. See: Pan
American Petroleum v. Orr, 319 F.2d 612 (5th Cir. 1963);
Philco Corp. v. Radio Corporation of America, 186 F. Supp. 155
One principle is clear: Plaintiffs are required to exercise
reasonable diligence in seeking to discover the existence of
alleged violations after being put on inquiry. What
constitutes "being put on inquiry"? I suppose, a certain
degree of notice, a certain amount of knowledge and some
reasonable suspicion. The verbal formula must be considered in
the context of a motion for summary judgment.
The defendants now contend that there is additional evidence
showing sufficient notice to plaintiffs of the existence of a
claim so as to charge them with due diligence in bringing suit
within the time prescribed by the statute of limitations.
Evidence in support of this contention consists of: (1) a
lawsuit brought by Starview in 1949 against some of the same
defendants who are now before me with allegations similar to
those in the present controversy; (2) depositions of
plaintiffs' officers and shareholders; and (3) correspondence
between plaintiffs' attorney and the Antitrust Division of the
Department of Justice.
The following facts are not in dispute:
On May 17, 1957, counsel for plaintiffs wrote a letter to
Victor R. Hansen, Assistant Attorney General, Antitrust
Division, Department of Justice, ...