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BANANA DISTRIBS. v. UNITED FRUIT CO.

December 5, 1957

BANANA DISTRIBUTORS, Incorporated; Percival B. Elbaum; Edith Elbaum; Joan S. Elbaum and Jerome D. Elbaum, minors, by Percival B. Elbaum, their guardian ad litem; and The Inland Corporation, Plaintiffs,
v.
UNITED FRUIT COMPANY; Fruit Dispatch Company; and John A. Werner, Defendants



The opinion of the court was delivered by: LEVET

This is an action for treble damages and injunctive relief under the antitrust laws. The application of the pertinent statute of limitations is immediately involved. The complaint was filed on September 3, 1953. It alleges a combination and conspiracy in violation of the federal antitrust laws commencing sometime in 1946; the complaint also alleges various overt acts constituting an illegal use of defendants' monopoly power committed in 1947 and 1949 and continuously thereafter up to the date of suit.

When the complaint was filed on September 3, 1953, there was no federal statute of limitations governing treble damage actions under the antitrust laws. The uniform four-year statute of limitations now incorporated under the Clayton Act (15 U.S.C.A. § 15b) was not enacted until 1955.

Counsel for plaintiffs and counsel for defendants agree that the causes of action herein, if any, arose in Connecticut. Furthermore, under these conditions, the parties agree that this court in determining the appropriate period of limitations must first look to the law of the forum, to wit, New York.

 However, Section 13 of the New York Civil Practice Act (sometimes called the 'borrowing provision') provides:

 'Limitation where cause of action arises outside of the state. Where a cause of action arises outside of this state, an action cannot be brought in a court of this state to enforce such cause of action after the expiration of the time limited by the laws either of this state or of the state or country where the cause of action arose, * * *'

 The 'borrowing statute' (Section 13 of the New York Civil Practice Act) has been consistently applied when the cause of action arose in another jurisdiction. Seaboard Terminals Corporation v. Standard Oil Co. of New Jersey, D.C.S.D.N.Y., 1938, 24 F.Supp. 1018, affirmed, 2 Cir., 1939, 104 F.2d 659; Electric Theater Co. v. Twentieth Century-Fox Film Corp., D.C.W.D.Mo.1953, 113 F.Supp. 937; cf. Cope v. Anderson, 1947, 331 U.S. 461, 67 S. Ct. 1340, 91 L. Ed. 1602. There is no claim that any of the plaintiffs come within the saving clause in favor of New York residents.

 Hence, we are forced to consider the relevant provisions of the State of Connecticut. These (Title 63, Chapter 414, General Statutes of Connecticut, 1949 Revision) are as follows:

 'Sec. 8316. Action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.'

 'Sec. 8325. Suit for forfeiture on penal statute limited to one year. No suit for any forfeiture upon any penal statute shall be brought but within one year next after the commission of the offense.'

 'Sec. 8330. Defendant's absence from the state to be excluded, when. In computing the time limited in the several cases aforesaid, the time during which the party, against whom there may be any such cause of action, shall be without the state, shall be excluded from the computation.'

 The matter at issue in this preliminary trial is whether the defendants Fruit Dispatch Company and United Fruit Company were 'without the state' during the years 1947-1953.

 The basic rule has been stated as follows:

 'It is well established that in determining the period of limitations applicable to actions at law, the federal courts are governed by local statutes as interpreted by the highest courts of the respective States. Bell v. Morrison, 1 Pet. 351, 26 U.S. 351, 359, 360, 363, 7 L. Ed. 174; Graham v. Englemann, D.C., 263 F. 166, 168. See, also, Palmer v. Texas, 212 U.S. 118, 131, 29 S. Ct. 230, 53 L. Ed. 435.' Van Dyke v. Parker, 9 Cir., 1936, 83 F.2d 35, 37. See Campbell v. City of Haverhill, 155 U.S. 610, 15 S. Ct. 217, 39 L. Ed. 280.

 The same court (9th Circuit) approved of the same rule with respect to any exceptions raising a bar to the statute notwithstanding the fact that the legislation or judicial construction thereof is different from that prevailing in other jurisdictions (83 F.2d at page 38). See also Wood & Selick, Inc., v. Compagnie Generale Transatlantique, 2 Cir., 1930, 43 F.2d 941, 942.

 Consequently, the question of whether defendants were 'without the state' must be determined by the laws of Connecticut and by reference to Connecticut decisions. We are bound by the decisions of the State of Connecticut on the construction and interpretation to be given those statutes. Leonia Amusement Corp. v. Loew's Inc., D.C.S.D.N.Y.1953, 117 F.Supp. 747, 751-752; Dibble v. Bellingham Bay Land Co., 1896, 163 U.S. 63, 73, 16 S. Ct. 939, 41 L. Ed. 72; Bauserman v. Blunt, 1893, 147 U.S. 647, 652, 13 S. Ct. 466, 37 L. Ed. 316.

 In the absence of a decision by the highest court of the state, the federal court must follow the decisions of the intermediate state courts, even though the rule may appear to be unsound or undesirable, unless it is convinced by other persuasive data that the highest court of the state would do otherwise, but it is not free to apply a different rule merely because it may think that the highest court of the state might announce a different rule in the future. 35 C.J.S. Federal Courts § 174, p. 1257.

 The Connecticut statute as to tolling -- that is, Section 8330 -- apparently was first used in 1821, although theretofore such words had been used in a statute concerning book debts enacted in 1785. The early statute provided that 'in computing the time limited in the several cases aforesaid, the time during which the party, against whom there may be any such cause of action, shall be without this state, shall be excluded from the computation.' Stat. p. 406, § 8 (Ed.1838). See Sage v. Hawley, 1844, 16 Conn. 106, 114.

 If analogous decisions clearly show the law of the state, the federal court must determine the case in accord with those decisions. Marsh v. Buck, 1940, 313 U.S. 406, 61 S. Ct. 969, 85 L. Ed. 1426. If the law cannot be ascertained from state decisions, only then should the federal court examine the decisions of other states on the subject or it may follow the rule established by federal decisions. But the federal court need not engage in mere speculation as to how the state court would decide the question. New England Mut. Life Ins. Co. v. Mitchell, 4 Cir., 1941, 118 F.2d 414, 420, certiorari denied 314 U.S. 629, 62 S. Ct. 60, 86 L. Ed. 505.

 Defendants assert, however, that in determining the principles applicable to this question, the Connecticut court would, and, therefore, this court must, utilize the so-called federal approach and apply the test of amenability to service under the 'transacting ...


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