injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants, shall be commenced within 6 years next after the cause of any such action shall have accrued.'
'2A:14-10. 2 years and 1 year; actions on penal statutes
'All actions at law brought for any forfeiture upon any penal statute made or to be made, shall be commenced within the periods of time herein prescribed:
'b. Within 2 years next after the offense committed or to be committed against the statute, or cause of action accrued, when the benefit of the forfeiture and the action therefor is or shall be limited or given to the party aggrieved; * * *'
The impact of the New Jersey Statute of Limitations upon an action under Section 4 of the Clayton Act for treble damages brought in this District by a foreign against a domestic corporation, has been explored by Judge Hartshorne of this Court in Florida Wholesale Drug, Inc., v. Ronson Art Metal Works, Inc., 1953, 110 F.Supp. In that case, Judge Hartshorne points out that although the cause of action arose in Florida the Statute of Limitations of New Jersey, the forum, applied and since the action was not barred by the Statute of the forum it could be maintained even though barred in the State where the cause of action arose. (Citing Restatement of Conflict of Laws, Sec. 604). After a comprehensive review of governing authorities, Judge Hartshorne reached the conclusion, with which I concur, that a private anti-trust suit under the Clayton Act, such as the case at bar, is not a suit for a penalty or forfeiture but rather an action on the case governed by the six-year New Jersey Statute of Limitations as in H. J. Jaeger Research Laboratories v. Radio Corp. of America, 3 Cir., 1937, 90 F.,2d 826; Bluefields S.S. Co. United Fruit Co., 3 Cir., 1917, 243 F. 1. The present action, therefore, is one at law for a tortious injury to the rights of another and is governed by Section 2A:14-1 of the Statutes of New Jersey, N.J.S.A., which requires that it be commenced within six years next after the cause of such action shall have accrued. Movant admits that from the face of the complaint it appears that the cause of action in the case at bar had accrued by June 10, 1951. Therefore, the first alternative of defendant RKO's motion, that all claims asserted by this plaintiff be dismissed, must be denied.
We now consider the second alternative, that all claims accrued against RKO prior to March 4, 1949 by the plaintiff in the Curtis case, be dismissed. This action was commenced March 3, 1955. The violations of the anti-trust laws for which the plaintiff seeks treble damages under Section 4 of the Clayton Act extended over a period which, according to the allegations of the complaint insofar as they relate to the defendant RKO, commenced November 1, 1947 and terminated June 10, 1951. In opposing this motion the plaintiff relies upon 15 U.S.C.A. 16 which, as of the date of the institution of the present action, read in part as follows:
'Whenever any suit or proceeding in equity or criminal prosecution is instituted by the United States to prevent, restrain, or punish violations of any of the anti-trust laws, the running of the statute of limitations in respect of each and every private right of action arising under said laws and based in whole or in part on any matter complained of in said suit or proceeding shall be suspended during the pendency thereof.'
It is conceded by all parties that while the case of United States v. Paramount Pictures, Inc.,
was pending as to the present moving defendant, RKO, the running of the New Jersey six-year statute of limitations was suspended.
Plaintiff Curtis contends that United States v. Paramount Pictures terminated as to RKO between November 8, 1948 and March 30, 1949 and rests his contention in this respect upon Leonia Amusement Corp. v. Loew's Inc., D.C.S.D.N.Y.1953, 117 F.Supp. 747.
In the Leonia Amusement case, the New York six-year statute of limitations was applied and the plaintiffs contended that United States v. Paramount Pictures was pending from July 20, 1938 until at least October 16, 1950, thereby suspending the New York statute during that period. In that case Judge Ryan pointed out, 117 F.Supp. at page 761, that 'Pursuant to the judgment (in United States v. Paramount Pictures) of November 8, 1948, RKO Pictures Corporation and RKO Theaters Corporation were organized on November 20, 1949 and acquired certain assets of Radio-Keith-Orpheum Corporation, which was then dissolved', and that the plaintiffs in the Leonia Amusement case had consented to the dismissal of the RKO defendants. Judge Ryan ruled that until the stockholders of the respective defendants had approved the reorganization plans required by the language of the consent decree (in United States v. Paramount Pictures) there was not a termination of the litigation with respect to that defendant whose stockholders had not so approved. Plaintiff argues further that RKO is not entitled to summary judgment because it has not revealed the date upon which the stockholders of Radio-Keith-Orpheum Corporation consented to the proposed reorganization of RKO defendant. In an affidavit presented in support of the present motion it appears that by order in the Paramount case, dated January 18, 1950, the litigation was severed and terminated as against the RKO defendants 'as of the 8th day of November, 1948' upon a representation that the proposed reorganization had been approved by the stockholders of Radio-Keith-Orpheum Corporation prior to March 30, 1949. Plaintiff points out that the effective date of stockholder approval of the proposed reorganization is nowhere indicated and contends that if it is prior to March 4, 1949, the instant motion should prevail, while if it is subsequent to that date, the motion should be denied.
The moving defendant points out that it has been judicially determined that United States v. Paramount Pictures terminated as to RKO on November 8, 1948, the date upon which the defendant entered into a consent decree in that litigation. Grengs v. Twentieth Century-Fox Film Corp., 7 Cir., 1956, 232 F.2d 325, certiorari denied 352 U.S. 871, 77 S. Ct. 96. In accordance with Section 16 of Title 15 U.S.C.A., the New Jersey six-year statute of limitations began to run against the plaintiff herein on November 8, 1948.
Inasmuch as this action was commenced on March 3, 1955, all claims which accrued to plaintiff prior to March 4, 1949, are barred by the New Jersey Statute of Limitations. To that extent, the motion of RKO for summary judgment will be granted.
Orders may be presented in accordance with the foregoing opinion.