United States District Court, Northern District of Illinois, E.D
August 12, 1982
EARL CONWAY, PLAINTIFF,
BULK PETROLEUM CORPORATION, A DELAWARE CORPORATION, AND GULF OIL CORPORATION, A PENNSYLVANIA CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Earl Conway ("Conway") brought this eight-count
action against defendants Bulk Petroleum Corp. ("Bulk") and Gulf
Oil Corp. ("Gulf") alleging that defendants engaged in a
conspiracy to fix prices and restrict independent dealers'
opportunity to sell competing products in violation of section 1
of the Sherman Act, 15 U.S.C. § 1, section 3 of the Clayton Act,
15 U.S.C. § 14 and section 3 of the Illinois Antitrust Act,
Ill.Rev.Stat. 1981, ch. 38, § 60-3.*fn1 Conway seeks treble damages
for losses sustained as the result of this conspiracy, costs,
attorneys' fees and permanent injunctive relief. Presently before
the Court is defendants' motion for summary judgment.
Fed.R.Civ.P. 56(b). For the following reasons, defendants' motion
will be granted.
Conway operated an E-Z Go gasoline service station on premises
leased from Bulk, a wholly-owned subsidiary of Gulf. His
year-to-year lease commenced on January 2, 1973, and was
terminated on September 16, 1976. On the date of termination,
Conway and Bulk executed an agreement which purportedly
terminated the lease and related supply contracts between Conway
and Bulk and released Bulk from all claims and causes of action
which Conway might have against Bulk. Conway alleges that during
the term of the lease, defendants engaged in a conspiracy to fix
the wholesale price of gasoline sold to Conway and the retail
price at which Conway could sell gasoline to consumers. Conway
also alleges that defendants unlawfully required him to purchase
gasoline, petroleum products and milk and tobacco products as a
condition of renewing the lease.
Defendants argue that they are entitled to judgment as a matter
of law for two reasons. First, the defendants assert that this
action is time barred by 15 U.S.C. § 15b and Ill.Rev.Stat. 1981
ch. 38, § 60-7(2). Alternatively, defendants argue that the
release executed between the parties bars Conway from asserting
these claims. Conway argues, on the other hand, that neither the
statutes of limitation nor the release bars this action because
defendants fraudulently concealed their conspiracy to drive
independent dealers out of business. Defendants' fraud, Conway
asserts, tolls the running of the applicable statute of
limitations and invalidates the release.*fn2
The statute of limitations applicable to private suits brought
under the federal antitrust laws provides:
Any action to enforce any cause of action under
sections 15, 15a or 15c of this title shall be
forever barred unless commenced
within four years after the cause of action
accrued. . . .
15 U.S.C. § 15b (1977 Supp.). Similarly, Illinois law bars any
antitrust action brought more than four years after the cause of
action accrued. Ill.Rev.Stat. 1981, ch. 38, § 68-7(2). An injured
party's failure to discover the existence of a cause of action
within the limitations period does not toll the statute.
Allis-Chalmers Manufacturing Co. v. Commonwealth Edison Co.,
315 F.2d 558
, 562 (7th Cir. 1963); Kansas City, Missouri v. Federal
Pacific Electric Co., 310 F.2d 271
, 277-80 (8th Cir.), cert.
denied, 371 U.S. 912
, 83 S.Ct. 257
, 9 L.Ed.2d 171 (1962);
Saunders v. National Basketball Assoc., 348 F. Supp. 649
In the present case, the unlawful conduct and injury of which
plaintiff complains occurred prior to or simultaneous with the
termination of Conway's lease in September, 1976. This action was
filed on September 9, 1981, almost five years after the
plaintiff's cause of action accrued. In order to avoid the bar of
statute of limitations, therefore, Conway must establish that (1)
Gulf and Bulk fraudulently concealed the nature and substance of
their unlawful conduct from plaintiff, (2) defendants were
successful in their efforts to conceal their conduct, and (3) his
failure to discover defendants' unlawful conduct was not the
result of his own absence of due diligence. Weinberger v. Retail
Credit Co., 498 F.2d 552, 555 (4th Cir. 1974). Cf. Baker v. F &
F Investment, 420 F.2d 1191, 1199 (7th Cir.), cert. denied,
400 U.S. 821, 91 S.Ct. 42, 27 L.Ed.2d 49 (1970); Laundry Equipment
Sales Corp. v. Borg-Warner Corp., 334 F.2d 788, 792 (7th Cir.
1964). Conway's bald allegations of conspiracy and fraud are not
sufficient, however, to toll the running of the limitations
period under the fraudulent concealment doctrine. Baker, supra,
420 F.2d at 1198; Morgan v. Koch, 419 F.2d 993, 997 (7th Cir.
Viewing the facts in the light most favorable to Conway, United
States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8
L.Ed.2d 176 (1962), the most that can be said in support of his
argument is that plaintiff was not aware of the underlying
purpose of defendants' pricing and supply policies during the
term of his lease.*fn3 Conway purportedly learned of defendants'
intention to drive independent gasoline dealers out of business
in a conversation with the former president of Bulk Petroleum in
late 1978 or early 1979. Conway's subsequent discovery of
defendants' purpose does not, however, establish fraudulent
concealment. Indeed, during the time he operated the service
station, Conway was aware of the objective facts underlying
defendants' unlawful price-fixing and various tying arrangements.
Conway does not allege that defendants fraudulently concealed
from him any substantive element of these violations.*fn4
Although entitled to all reasonable inferences in his favor,
Conway cannot escape the bar of the statute of limitations merely
by alleging fraud and conspiracy. Accordingly, defendants' motion
for summary judgment is granted. It is so ordered.