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April 7, 1970

Phillip Hall, An Infant, by Lloyd Hall, His Guardian Ad Litem, et al., Plaintiff
E.I. du Pont de Nemours & Co., Inc., et al., Defendant

Weinstein, D. J.

The opinion of the court was delivered by: WEINSTEIN

Memorandum and Opinion


 Plaintiffs instituted this action against the defendants, individual manufacturers of blasting caps and the trade association to which they belong, in 1969. A total of 230 causes of action are stated, with damages amounting to more than $200,000,000.00. Among the claims asserted are 44 causes of action grounded upon an alleged violation of section one of the Sherman Anti-Trust Act. 15 U.S.C. § 1. All of these claims assert a conspiracy to inhibit the manufacture of safe blasting caps and to refrain from the proper labeling of these products, in restraint of trade. It is alleged that between 1956 and 1961 explosions of blasting caps manufactured and marketed pursuant to this conspiracy resulted in serious injuries to the minor plaintiffs and loss to their parents or guardians.

 All defendants have joined in a motion to dismiss the complaint. Since it is clear that the action must be dismissed because of the expiration of the applicable statute of limitation, it is unnecessary to determine whether the federal claims under section one of the Sherman Act must be dismissed for failure to state a cause of action.

 Section 4 of the Clayton Anti-Trust Act, 15 U.S.C. § 15, contains a specific grant of jurisdiction to federal courts over private actions arising under the federal anti-trust laws. It provides:

"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue, therefore in any district court of the United States . . . without respect to the amount in controversy. . . ."

 The total pattern of federal jurisdictional statutes indicates that this particular provision (15 U.S.C. § 15), rather than the more general jurisdictional grants of title 28, controls actions based upon the anti-trust laws. Cf. 15 U.S.C. §§ 4, 26. This is true even as to cases where diversity or a federal question, coupled with a claim in excess of $10,000 in damages, exists in satisfaction of the more general jurisdictional requirements. 28 U.S.C. §§ 1331, 1332.

 In 1955, a four year statute of limitation was added to the Clayton Act. 15 U.S.C. § 15b. It applies to "Any action to enforce any cause of action under" 15 U.S.C. § 15. Where jurisdiction is founded upon the assertion of a claim arising under the laws of the United States, the federal statute of limitation, if there be one, applies. Holmberg v. Armbrecht, 327 U.S. 392, 395, 90 L. Ed. 743, 66 S. Ct. 582 (1946):

"If Congress explicitly puts a limit upon the time for enforcing a right which it created, there is an end of the matter. The Congressional statute of limitation is definitive.".

 Since the last incident alleged in the complaint occurred in 1961 and this action was not instituted until 1969, the complaint must be dismissed unless this statute of limitation has been tolled.

 Plaintiffs contend that the running of the statute should be tolled because of the infancy of the minor plaintiffs during this entire period. The question is novel; not surprisingly, actions brought under 15 U.S.C. § 15 ordinarily involve adult businessmen or corporations. The solution to the question of whether infancy will toll this statute must be sought by analogy and in an analysis of the statutory design.

 No federal statute of limitation or tolling provision of general applicability exists. Note, Federal Statutes Without Limitations Provisions, 53 Colum. L. Rev. 68 (1953). The power to create tolling exceptions judicially is limited by the general rule that, when a federal statute of limitation exists, it acts as a total bar, extinguishing the right to sue accorded by other statutory provisions. Powers v. United States, 390 F.2d 602 (9th Cir. 1968); Oliver v. Calmar S.S. Co., 33 F. Supp. 356, 357 (E.D. Pa. 1940). Federal courts have acted in a few instances to permit the tolling of statutes in the absence of specific authority. But in each instance the plaintiff was prevented from obtaining any effective relief during the tolled period because of circumstances beyond his control. See, e.g., Burnett v. New York Central Railroad Co., 380 U.S. 424, 13 L. Ed. 2d 941, 85 S. Ct. 1050 (1965) (where timely Federal Employers' Liability Act case instituted in state court is dismissed for improper venue, and when state has no provision for transfer of such cases, statute of limitation is tolled during pendency of state suit); Osbourne v. United States, 164 F.2d 767 (2d Cir. 1947) (where, during wartime, citizen is prevented from access to courts because of internment abroad, statute of limitation is tolled); Holmberg v. Armbrecht, 327 U.S. 392, 397, 90 L. Ed. 743, 66 S. Ct. 582 (1946) (doctrine that "statute does not begin to run until the fraud is discovered," "is read into every federal statute of limitation."); Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80 (2d Cir.), cert. denied, 368 U.S. 821, 7 L. Ed. 2d 26, 82 S. Ct. 39 (1961) (same).

 Neither infancy nor insanity has been recognized as warranting the judicial creation of tolling exceptions under other federal statutes of limitation. Mann v. United States, 399 F.2d 672 (9th Cir. 1968) (Federal Tort Claims Act; infancy); Pittman v. United States, 341 F.2d 739 (9th Cir.), cert. denied, 382 U.S. 941, 86 S. Ct. 394, 15 L. Ed. 2d 351 (1965) (Federal Tort Claims Act; infancy); Williams v. United States, 133 F. Supp. 317 (E.D. Va. 1954) (Suits in Admiralty Act; insanity); Shunney v. Fuller Co., 111 F. Supp. 543 (D.R.I. 1953) (Fair Labor Standards Act; infancy); Sgambati v. United States, 75 F. Supp. 18 (S.D.N.Y. 1947), aff'd, 172 F.2d 297 (2d Cir.), cert. denied, 337 U.S. 938, 93 L. Ed. 1743, 69 S. Ct. 1514 (1949) (Suits in Admiralty Act; infancy); Taylor v. Southern Railway Co., 6 F. Supp. 259, 260 (E.D. Ill. 1934) (dictum; cases under Federal Employers' Liability Act "establish the rule that the time for beginning action is not extended by insanity of the employee, by infancy or by the fact that the delay in institution of the suit was caused by the fraud and deceit of defendant."). These decisions do not depend upon the doctrine of sovereign immunity. Pittman v. United States, 341 F.2d 739 (9th Cir.), cert. denied, 382 U.S. 941, 15 L. Ed. 2d 351, 86 S. Ct. 394 (1965) ("we fail to agree . . . that if we should pronounce there never was any federal immunity on torts that the plaintiff would be in a better position. The government could still have its statute of limitation."). Rather, they seem to be predicated upon the sound assumption that in most instances a valid claim of an infant or incompetent will be enforced as a result of the efforts of a relative or friend so that, in the absence of legislation, the courts need not exercise their law making powers to prevent injustice. Decisions in diversity cases such as Stanczyk v. Keefe, 384 F.2d 707 (7th Cir. 1967), relied upon by plaintiffs, are not relevant since the litigation is governed by state laws incorporating infant tolling provisions.

 These precedents in other areas of federal law are particularly persuasive when viewed against the strong Congressional policy in favor of repose in antitrust suits. The Report of the Senate Committee on the Judiciary indicates that, in adopting the four year statute of limitation and its only statutory ...

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