choose to apply to an implied cause of action which involved
the very balance of bargaining parties' interests for which
section 10(b) was designed, see 103 S.Ct. at 2294. With section
303 we deal with an express statutory provision which does not
refer to section 10(b) and which involves parties who, but for
the alleged tortious conduct, have no necessary relationship.
We have no reason to believe that Congress signified by its
silence an intention that section 10(b) apply here.
Rather, Congress' silence as to the appropriate time limit
offers some indication that it intended state rules to govern.
Given the judicial history since as early as 1830 of applying
state timeliness rules in the absence of contrary
Congressional provisions, see UAW v. Hoosier Cardinal Corp.,
383 U.S. 696, 703-704, 86 S.Ct. 1107, 1112, 16 L.Ed.2d 192
(1966), and the existence of the Rules of Decision Act,
28 U.S.C. § 725 (1940) (recodified in substantially same form at
28 U.S.C. § 1652 (1982)), we can most reasonably understand
Congress' intention, if it had any particular intention, to be
that courts apply state procedures for tort actions to section
303 suits. This is not a case, like DelCostello, in which the
reason that the right of action in question lacks a governing
statute of limitations is that the right has been implied by
the judiciary. The absence of a governing statute for an
implied right of action is "not comparable" to that for an
express statutory creation. Mitchell, 451 U.S. at 68, 101 S.Ct.
at 1567 (Stewart, J., concurring). We need not guess what
Congress would have provided had it expressly created this
remedy. We know instead that with a century of judicial
application of state rules in the background, Congress did not
specify a rule. Interpreting the similar silence of section 301
as to the time limit for bringing suits expressly provided for
by that section, the Supreme Court determined that state law
should be borrowed. "[W]e cannot take the omission in the
present statute as a license to judicially devise a uniform
time limitation for § 301 suits." Hoosier, 383 U.S. at 704, 86
S.Ct. at 1112.
Granted, we are not bound, either by the Rules of Decision
Act or by the fact that the cause of action in question is
express, to apply state rules. See DelCostello, 103 S.Ct. at
2287 n. 12 (hypothesizing that if section 301 hybrid suits were
created expressly by statute, the Court would nevertheless
apply section 10(b) rule because of comparative unsuitability
of state law); id. at 2287-2288 n. 13 (discussion of Rules of
Decisions Act); id. at 2289 (instances of decision not to apply
state rules). Even if Congress did not expect state rules to
control, though, according to DelCostello we would be justified
in departing from the normal borrowing practice only if we
found that the nature of the section 303 remedy rendered state
We do not find that Illinois' five-year state statute of
limitations is unsuitable. The contrast between the
troublesome application of state law in DelCostello and the
ease of application here is instructive. As mentioned supra,
section 303 suits involve neither parties who must bargain
together in the future nor resolution of disputes over
contracts that continue to have binding effect. These suits do
not, like hybrid section 301 suits, combine actions of
different natures against different parties, compare
DelCostello, 103 S.Ct. at 2291-2292, 2293 n. 19, or follow
failed attempts at arbitration, compare id. at 2291-2292.
Application of a state rule to the lawsuit and of section 10(b)
to the administrative procedure does not thwart either remedy,
for example by placing plaintiffs in a bind whereby damages
might become uncollectable. Compare id. at 2292.
Rather, section 303 suits are simply damage actions for
tortious conduct. Thus, state procedural rules for tort
actions are by definition applicable. It is more likely that
we would err by applying a six-month bar, which might not
provide a period sufficient for plaintiffs to become aware of
injury and the extent of damages, than by applying a bar
traditionally governing tort actions. While a rule making
section 8(b)(4) and section 303 proceedings concurrent might
be advantageous, this
Court's job is not to legislate the rule of its choice.
Because we find application of state law appropriate and
plaintiff's complaint was filed well within the five-year
limitation period provided by Illinois law, we deny
defendant's motion for summary judgment.
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