The opinion of the court was delivered by: NEVIN
On August 18, 1948, with the consent and upon the agreement of all the parties to this action, an order (later to be referred to) was approved by Chief Judge Knox, wherein it was provided inter alia that 'the issues presented by the affirmative defenses of the statutes of limitations to the claim asserted in the particularized complaint be tried as separate issues in advance of the trial of the other issues of this action'. Subsequently the 'separate issues' thus to be tried were referred by Judge Knox to the present judge (of Dayton, Southern District of Ohio) who was then sitting by designation as a judge in New York, in the Southern District of New York.
Extensive and rather voluminous briefs having in the meantime been filed, on behalf of each of the parties respectively, the cause came on for hearing on December 12, 1949, by way of oral argument on the 'separate issues' referred to in the order of Judge Knox.
The oral arguments occupied the whole of two days. During the arguments there was filed with the Court, on December 13, 1949, a document containing 'Stipulations of facts and presentation of issues entered into between counsel for the plaintiff and counsel for the respective defendants'. This document was marked 'Court's Exhibit 1' for the purposes of the 'separate trial.'
On May 5, 1950, in open court with counsel present, the court in an oral opinion, rendered its decision. That decision is reported in 96 F.Supp. 1014. 1014. Inasmuch as it is now readily available to anyone interested, it is unnecessary to refer to it here in detail.
No order, based on that decision, has ever been entered. This for the reason that defendants filed a 'Motion for reargument and rehearing' stating therein that 'oral argument of this application for rehearing and reargument is respectfully requested'. Plaintiff expressed the 'view that no oral reargument of the issues of the separate trial is appropriate unless this Court sees fit to entertain a petition for rehearing and order such a reargument'.
The court concluded that defendants' 'Motion for reargument and rehearing' and the oral argument requested therein should be granted.
Accordingly, counsel for all the respective parties agreeing thereto, the oral argument was set for June 14, 1950, at Dayton, Ohio. At the appointed time all interested counsel appeared in court. The oral arguments again occupied the whole of two days- June 14 and 15, 1950.
A transcript of these arguments was later delivered to the court. That transcript the court has before it, along with the briefs previously filed, as well as letters from counsel sent to the court after June 15, 1950, in which reference is made to certain decisions, then available, which counsel submit support their contentions.
Shortly before the transcript was delivered to the court, the court received a letter dated October 26, 1950 (copies to counsel for plaintiff and other defendants) from Mr. A. L.Hodson, of counsel for defendant, Standard Oil Co. (Indiana). In his letter, Mr. Hodson says: 'You mention to Chief Judge Knox )in a letter to him) that the transcript of the reargument will shortly be completed and that you will start your reexamination of the case as soon thereafter as circumstances permit. In view of the voluminous nature of the material in the case, we have prepared and present to you suggested findings and conclusions on behalf of the defendants Atlantic, Gulf, Standard (Indiana) and Texas. Submission of proposed findings and conclusions as an aid to the court is, of course, customary procedure in connection with motions for summary judgment and separate trials. We believe this procedure may be particularly helpful in this case in view of the length of the complaint, the bill of particulars, the stipulations, the briefs and the transcripts of argument and reargument. With this in mind we hope that attorneys for plaintiff will also submit suggested findings and conclusions on the issues covered by us'.
With his letter Mr. Hodson sent to the Court the proposed Findings and Conclusions referred to therein. They were signed and submitted by counsel for the following named defendants: The Atlantic Refining Co; Gulf Oil Corporation; Standard Oil Co. (Indiana) and The Texas Company.
Under date of October 30, 1950, the court received a letter from Mr. Neuman (of counsel for plaintiff) in which he states that 'We have no desire to inflict an additional burden upon your Honor at this time, but the course of action adopted by Mr. Hodson and his co-counsel leaves us no alternative but to reply to their argument and to propose findings and conclusions in proper form'.
On November 2, 1950, the court wrote a letter addressed jointly to Messrs. Hodson and Neuman. In that letter, the court stated that 'While the first intimation that the court had with regard to the submission of any proposed Findings and Conclusions was that contained in Mr. Hodson's letter of October 26, and while he did not ask that any Findings or Conclusion be submitted, nevertheless, since that has now been done by Mr. Hodson (and the other counsel whose names appear at the end of the Findings and Conclusions on behalf of their respective defendants) permission is now extended, of course, to Mr. Neuman and his associate counsel to prepare and submit (at their convenience) any proposed Findings and Conclusions which they may desire to present. This also is true with respect to any of the other defendants, if any of them now wish to propose any Findings and Conclusions other than, or different from, those submitted by Mr. Hodson and associated counsel for the other defendants whom they represent'.
Thereafter the court received proposed Findings and Conclusions from the following named defendants: Standard Oil Co. (New Jersey) and Shell Union Oil Corporation (January 27, 1951); The M. W. Kellogg Company (January 31, 1951); Gasoline Products Company (February 6, 1951) and on January 31, 1951, from plaintiff.
The court has here referred somewhat in detail with regard to its decision now taking the form of Findings of Fact and Conclusions of Law. As earlier indicated, this suggested procedure was initiated in the letter of Mr. Al. L. Hodson, to the court dated October 26, 1950. Since it now appears to have the approval of all counsel, that is the course the court will pursue.
It is suggested by some of defendants in their proposed Findings and Conclusions that 'If a private right of action under Section 4 does not accrue as long as the conspiracy continues or as long as a person injured in his business sees fit to continue in business, then the conspirators could escape suit by keeping the conspiracy in operation and the injured person could avoid statutes of limitation by continuing in business however nominal and however long after the injury'.
The court is not here called upon, nor does it, decide the correctness or incorrectness of this theory. The court is deciding the instant case solely upon the facts conceded, for the purposes of this separate trial, to be true. The agreed order of Judge Knox provides 'that for the purposes of such separate trial the allegations of the Complaint and of the Bill of Particulars shall be taken as true'.
In the instant case it is alleged in the Complaint that one of the results of all the acts, arrangements and contracts of defendants, was the destruction of plaintiff's business. In the present case it is 'a condition and not a theory' which is presented to the court.
It is this conceded (for the purposes of the separate trial) 'condition' which the court here takes into consideration.
Upon a consideration of the whole of the record, the conceded facts and the briefs and arguments of counsel, the court has arrived at the following:
1. On March 16, 1945, plaintiff filed its complaint in this Court seeking a recovery of threefold damages under Section 4 of the Act of Congress of October 15, 1914, commonly known as the Clayton Act, 38 Stat. 731, 15 U.S.C.A. § 15. The complaint alleged that defendants had combined and conspired to violate the Anti-trust laws of the United States, and specifically it was alleged that the conspiracy was intended to and did eliminate plaintiff from competition in the business of designing and installing cracking equipment and processes in the United States.
2. A preliminary contest over venue resulted in the dismissal from the action of Universal Oil Products Company (South Dakota) and Standard Oil Company of California, D.C., 70 F.Supp. 77. A third defendant, Universal Oil Products Company (Delaware), was dismissed from the action without prejudice on April 29, 1949, following the purchase by it from plaintiff of a covenant not to sue. The remaining defendants are: Shell Union Oil Corporation; The Atlantic Refining Company; Gasoline Products Company, Inc.; Standard Oil Company (Indiana); The Texas Company; The M. W. Kellogg Company; Standard Oil Company (New Jersey); and Gulf Oil Corporation.
3. On August 18, 1948, Chief Judge Knox, upon the subjoined consent of the parties, entered an order herein which provided for a separate trial of the issues raised by the affirmative defenses of the statutes of limitations pleaded by the defendants. The purpose of the separate trial is epitomized by the direction in Judge Knox's order that it 'shall be limited to the determination of the applicable period or periods of limitation available to each defendant against the cause or causes of action or parts thereof pleaded in the Complaint as particularized * * *.' The material portion of the said order reads as follows: 'Upon the complaint filed herein on March 16, 1945, the bill of particulars filed hereon on April 19, 1948, and the answers of the respective defendants filed herein on June 17, 1948, and it appearing to the Court that the answers of the respective defendants have each raised the affirmative defenses of the statutes of limitations, and it further appearing to the Court that the attorneys for the plaintiff and for the respective defendants, with the object of promoting an early determination of this action, request and consent to a separate trial of the issues hereinafter defined presented by the affirmative defenses of the statutes of limitations, as evidenced by the sub-joined consent of said attorneys, * * *. It is therefore ordered, that the issues presented by the affirmative defenses of the statutes of limitations to the claim asserted in the particularized complaint be tried as separate issues in advance of the trial of the other issues of this action; that for the purposes of such separate trial the allegations of the Complaint and of the Bill of Particulars shall be taken as true; that the judgment of the court on the separate trial shall not determine the extent of plaintiff's recoverable damages, if any, but shall be limited to the determination of the applicable period or periods of limitation available to each defendant against the cause or causes of action or parts thereof pleaded in the Complaint, as particularized, and in the light of the facts to be adduced upon the separate trial relating to the domicile, residence, suability and general business activity of the various parties insofar as such factors or any of them may be relevant; that such judgment shall not preclude: 1. Defendants subsequently from contending that the alleged cause or causes of action or parts thereof and any alleged item or items of damage are unfounded in fact and in law except insofar as any applicable period or periods of limitations shall have been determined by such judgment; 2. Plaintiff from proving its cause or causes of action and the extent of its damages, if any, within the applicable period or periods of limitations determined by such judgment, at such trial as may subsequently be had on the merits of this cause, * * *.'
4. For the purposes of the aforesaid separate trial, stipulations of facts and presentations of issues were entered into between counsel for the plaintiff and counsel for the respective defendants. The stipulations recite that they contain all of the facts pertinent to the issues of law presented by the affirmative defenses of the statutes of limitations pleaded by each defendant.
5. In each of the stipulations it was agreed that the ultimate question upon the separate trial was: From what date or dates, if any, is a recovery by plaintiff of damages under the provisions of Section 4 of the Clayton Act, 15 U.S.C.A. § 15, against each defendant not barred by limitations?
6. Following the aforesaid statement of the ultimate question, there was set out in each of the stipulations a specification of the legal issues thought by plaintiff or the subscribing defendants to be pertinent to the decision of said question.
7. In each of the stipulations it was agreed that the claimed losses, if any, of plaintiff were suffered in the State of Kansas and that the cause or causes of action stated in the complaint as supplemented by the bill of particulars filed by plaintiff herein arose in the State of Kansas.
8. In one form or another, it was also agreed by the parties that the stipulations and facts found by the court upon the basis thereof shall not be evidence for or against the parties in any other cause or in any other proceedings in this cause 'except as to the issues involved in the defenses of the statutes of limitation.'
The following findings of facts are directed solely to the issues raised by the defenses under consideration and in nowise are to be construed as touching upon the merits.
9. Plaintiff, The Winkler-Koch Engineering Company, is a corporation organized and existing under the laws of the State of Kansas.
10. Defendant The Atlantic Refining Company, hereinafter called Atlantic, is a corporation organized and existing under the laws of the State of Pennsylvania. On September 28, 1936, it was granted authority by the State of Kansas to engage in business in that State as a foreign corporation, and this authority has never been revoked.
11. Defendant Gulf Oil Corporation, hereinafter called Gulf, is a corporation organized and existing under the laws of the State of Pennsylvania. On February 1, 1936, it was granted authority by the State of Kansas to engage in business in that State as a foreign corporation, and this authority has never been revoked.
12. Defendant Standard Oil Company (Indiana), hereinafter called Indiana, is a corporation organized and existing under the laws of the State of Indiana. On March 19, 1903, it was granted authority by the State of Kansas to engage in business in that State as a foreign corporation, and this authority has never been revoked.
13. Defendant The Texas Company, hereinafter called Texas, is a corporation organized and existing under the laws of the State of Delaware. On March 10, 1927, it was granted authority by the State of Kansas to engage in business in that State as a foreign corporation, and this authority has never been revoked.
14. Defendant The M. W. Kellogg Company, hereinafter called Kellogg, is a corporation organized and existing under the laws of the State of Delaware. On January 16, 1920, it was granted authority by the State of New York to engage in business in that State as a foreign corporation, and this authority has never been withdrawn or revoked. Kellogg has never been granted authority by the State of Kansas to do business in that State as a foreign corporation.
15. Defendant Gasoline Products Company, Inc., hereinafter called Gasoline, is a corporation organized and existing under the laws of the State of Delaware. Since its incorporation in 1928, it has been doing business in the State of New York but it has never been granted authority by ...