The opinion of the court was delivered by: Robert D. Morgan, District Judge.
This is a private antitrust suit for treble damages arising
under the Commerce and Trade Laws of the United States, 15 U.S.C. § 1ff.
Jurisdiction is founded on 28 U.S.C. § 1337. The case is
presently before the court on defendant Sunbeam's motion, under
F.R.C.P. 12(b)(6), to dismiss the complaint because of
plaintiff's "failure to state a claim upon which relief can be
granted," or, in the alternative, to strike portions of the
complaint. Defendant Glaesner has never been served with summons.
The allegations of the complaint, which are taken as true for
purposes of this motion, state that the defendant Ken Glaesner is
the Eastern Regional Manager of the defendant corporation; that
the plaintiff was a sales representative of the defendant
corporation by an agreement which states in pertinent part that:
"1. The Company does hereby appoint * * * (Fagan) its
exclusive Sales representative for * * * the
following described territory * * *.
"2. The terms of the agreement shall commence on the
date hereof and continue until terminated by either
party upon the giving of thirty (30) days prior
notice * * *.
"3. (a) * * * He shall not be precluded from handling
other lines or acting as Sales Representative for
other companies, provided, however, that he shall not
during the term of this Agreement maintain any
connection, directly or indirectly, of any kind, with
any person, firm, or corporation which is engaged in
competition with the Company.
"14. This Agreement has been executed in the * * *
State of California, and shall be interpreted
according to the laws of the State of
California. * * * The statute of limitations on any
claim of Sales Representative against Company shall
be six (6) months from the date of termination or
the occurrence of the claim, whichever is earlier."
Plaintiff, during the contract period, did represent companies
with similar products to those of defendant and by reason thereof
the defendant corporation terminated the "Sales Representative
Agreement" on or about August 2, 1968.
Plaintiff argues that the agreement and conduct of the
defendants operated as a conspiracy in restraint of interstate
commerce, tending to lessen competition since the plaintiff was
compelled to refrain from representing manufacturers and
distributors of similar products, and creating a monopoly for the
defendants within the Southern District of Illinois, to the
plaintiff's damage in excess of $100,000.
The defendant Sunbeam argues that the claim alleged herein is
barred by the six-month limitation provision of the contract
pleaded. The contract states that the agreement shall be
interpreted according to the laws of the State of California
where the agreement was executed. Said defendant cites numerous
cases from California and several federal cases which hold that
a six-month contractual limitation period is reasonable and
This court might agree that the limitation is reasonable and
valid if the action were a suit upon the contract or for breach
thereof. The action before this court, however, is based upon
federal public policy as expressed in the antitrust laws of the
United States. The contract is simply offered as evidence of the
alleged violation of that policy. An action to recover treble
damages under the Clayton Act is a civil remedy sounding in tort.
Clark Oil Co. v. Phillips Petroleum Co., 148 F.2d 580 (8th Cir.
1945) cert. denied, 326 U.S. 734, 66 S.Ct. 42, 90 L.Ed. 437
(1945). It is clear that federal law controls in determining
whether the action was properly commenced. Moore Co. v. Sid
Richardson Carbon & Gasoline Co., 347 F.2d 921 (8th Cir. 1965),
cert. denied, 383 U.S. 925, 86 S.Ct. 927, 15 L.Ed.2d 845 (1966),
rehearing denied, 384 U.S. 914, 86 S.Ct. 1335, 16 L.Ed.2d 367
(1966). The lack of uniformity in state statutes of limitations
was the prime factor which motivated Congress to enact the four
year statute of limitations applicable to private antitrust
litigation. Kansas City v. Federal Pacific Electric Co.,
310 F.2d 271 (8th Cir. 1962), cert. denied, 371 U.S. 912, 83 S.Ct. 256, 9
L.Ed.2d 171, (1962), rehearing denied, 373 U.S. 914, 83 S.Ct.
1297, 10 L.Ed.2d 415 (1962). Because of the nature of this action
and to be consistent with the spirit of uniformity, the
limitation period of four years contained in 15 U.S.C. § 15b must
be applied and the commencement of this action was well within
Second, the defendant Sunbeam argues that venue is improper and
therefore the action should be transferred to another district.
There were no specific grounds argued for transfer, but it
appears that the defendant's basis is either that California was
the state of execution, or that since the contract provided that
California law be applied, California is the proper forum. This
court does not consider either ground sufficient to override
plaintiff's choice of forum. This court may be bound to apply
California law in any construction of the contract, but the
federal antitrust laws govern venue of an action thereunder.
Section 12 of the Clayton Act enlarged
the local jurisdiction of the district courts so as to
establish the venue of a suit not only in a district in which the
corporation resides or is found, but also in any district in
which it transacts business. Eastman Kodak Co. v. Southern Photo
Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927).
In Eastman the court stated (273 U.S. at 374, 47 S.Ct. at 404)
"* * * since it appears * * * that the defendant, in
a continuous course of business, was engaged, not
only in selling and shipping its goods to dealers
within the Georgia district, but also in soliciting
orders therein through its salesmen and promoting the
demand for its goods through its demonstrators for
the purpose of increasing its sales, we conclude that
it was ...