the plaintiff to apply to the Court for leave to file an amended complaint.' Since the plaintiff has failed to avail itself of this right, the dismissal of the action is herein made final.
The defendant's present motion for summary judgment is directed to the claim for injunctive relief under Section 16 of the Clayton Act, supra. It is argued that this claim is barred by the lapse of time under the doctrine of laches. We are of the opinion that this motion must be sustained for the reasons hereinafter discussed.
Section 4 of the Clayton Act, supra, grants to 'any person * * * injured in his business or property by reason of anything forbidden in the antitrust laws' a right to maintain an action for treble damages. Section 16 of the Act, supra, grants an additional right to maintain an action for injunctive relief 'against threatened loss or damage.' We are of the opinion that the equitable remedy available under Section 16 is predicated upon the legal cause of action created by Section 4. It is essentially an equitable remedy in aid of a legal right created by the statute.
The statute of limitations, by its express terms, applies only to actions at law and may not be invoked as a defense against a claim exclusively equitable. However, where the equity jurisdiction is invoked in aid of a legal right, or is predicated upon a legal cause of action, equity 'will withhold its remedy if the legal right is barred by the * * * statute of limitations.' Russell v. Todd, 309 U.S. 280, 289, 60 S. Ct. 527, 532, 84 L. Ed. 754; see also Tobacco and Allied Stocks v. Transamerica Corp., D.C., 143 F.Supp. 323, 325, et seq., affirmed on other grounds 3 Cir., 244 F.2d 902.
The relevant rule is stated by the Supreme Court in Russell v. Todd, supra, as follows: 'Even though there is no state statute applicable to similar equitable demands, when the jurisdiction of the federal court is concurrent with that at law, or the suit is brought in aid of a legal right, equity will withhold its remedy if the legal right is barred by the local statute of limitations.' See also Cope v. Anderson, 331 U.S. 461, 463 et seq., 67 S. Ct. 1340, 91 L. Ed. 1602. We are of the opinion that the rule is applicable here and should be invoked to bar the claim for injunctive relief.
The rule was applied in the case of United States Coast Theatres Corp. v. South Side Theatres, D.C., 86 F.Supp. 109, at page 111, wherein it was held: 'The local statute of limitations applicable to actions for damages will also be adopted and applied, in exercise of the equity jurisdiction of (the) court, to the injunctive relief sought pursuant to § 16 of the Clayton Act, 15 U.S.C.A. § 26.'
The plaintiff admits the existence of a conspiracy in restraint of trade in violation of the antitrust laws prior to September 5, 1941, but alleges that its predecessor became a party to the conspiracy under economic duress and the contemporary coercion of the defendant's predecessors. The allegation is denied by the defendant, but for the purposes of the present motion we shall accept it as true.
An aggrieved party who joins in existing conspiracy under such circumstances is not in pari delicto and therefore may maintain an action for damages and for injunctive relief under Sections 4 and 16 of the Clayton Act. Ring v. Spina, 2 Cir., 148 F.2d 647, 652 et seq. See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 377 et seq., 47 S. Ct. 400, 71 L. Ed. 684. The predecessor to the plaintiff brought no such action. It continued performance under the illegal contracts for a period of eighteen years and continued to enjoy the benefits of the unlawful enterprise.
The present action is brought by the plaintiff as the 'legal successor in interest' to the rights of Farbenfabriken vorm. Friedrich Bayer and Company, Leverkusen, and I. G. Farbenindustrie, I. G. Farben. We are of the opinion that if the present action for injunctive relief were one brought by either of the named predecessors of the plaintiff it would be barred by the lapse of time under the doctrine of laches. The position of the plaintiff is no better than that of its predecessors. We are of the opinion that the equities favor the defendant.
The motion for summary judgment is granted. The defendant shall submit to the Court, on notice to the plaintiff, an appropriate order.
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