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June 28, 1988

Pension Fund-Mid-Jersey Trucking Industry, et al., Plaintiffs,
Omni Funding Group, Defendant

The opinion of the court was delivered by: FISHER

 Before the court is a motion to dismiss the action brought by defendant Susan Howard-Zauber. Specifically, Howard-Zauber seeks dismissal of the RICO claims based on the statute of limitations, dismissal of Count 19 based on the three-year ERISA statute of limitations and dismissal of the fraud count as a matter of law.

 This court has previously addressed similar motions in this case, and the court's opinion on those motions, in large measure, is dispositive here. First, the motion to dismiss the RICO counts based on the statute of limitations is denied. The court has already held that the Clayton Act's tolling provisions, 15 U.S.C. ยง 16 (i), are applicable to civil RICO actions where parallel criminal litigation is involved. Pension Fund-Mid-Jersey Trucking Industry-Local 701, et al., v. Omni Funding, Inc., et al., December 16, 1987, (D.N.J. 1987).

 This court previously held:

Among the practicalities of RICO litigation is the fact that in most instances there will be parallel criminal and civil actions. The court, therefore, concludes that it is similarly appropriate to apply the Clayton Act's tolling provisions where parallel criminal litigation is involved.

 There is a clear line of authority which requires that where a statute of limitations is borrowed, the tolling and suspension provisions which are part of that statute must likewise be applied. West v. Conrail, 481 U.S. 35, 107 S. Ct. 1538, 95 L. Ed. 2d 32 (1987); Johnson v. Railway Express Agency, 421 U.S. 454, 464, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975); Bd. of Regents v. Tomanio, 446 U.S. 478, 484-85, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980). In Johnson, supra, the Court stated:

Any period of limitation . . . is fully understood only in the context of the various circumstances that suspend it from running against a particular cause of action. Although any statute of limitations is necessarily arbitrary, the length of the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting prosecution of stale ones. In virtually all statutes of limitations the chronological length of the limitations period is interrelated with the provisions regarding tolling, revival, and questions of application.

 421 U.S. at 463-64. In enacting the Clayton Act's four-year statute of limitations, Congress also amended the tolling provisions of the Clayton Act in several respects. The Senate Report to those modifications states:

There are many instances where the statute of limitations as to a private cause of action may nearly have expired before suit is instituted by the Government under the antitrust laws. Although the statute is tolled during the pendency of those proceedings brought by the United States, the plaintiff in a treble-damage action may find himself hard pressed to reap the benefits of the Government's suit if, upon its conclusion, he has but a short time remaining to study the Government's case, estimate his own damages, assess the strength and validity of his suit, and prepare and file his complaint. To alleviate such difficulties, the present bill would extend the tolling period not only for the duration of the Government's antitrust suit, but for one year thereafter. This would guarantee all plaintiffs an adequate period in which to take advantage of Government antitrust proceedings.

 2 U.S. Code Cong. and Admin. News, 84th Cong. 1955, at 2332. Courts have recognized that the Clayton Act's tolling provisions plainly reflect Congress's desire to make available to private litigants the benefits of prior Government antitrust litigation. See Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 317, 14 L. Ed. 2d 405, 85 S. Ct. 1473 (1965); State of New Jersey v. Morton Salt Co., 387 F.2d 94 (3d Cir. 1967); Hardy Salt Co. v. State of Illinois, 377 F.2d 768 (7th Cir. 1967).

 As noted, the Court in Johnson, supra, explained that a statute of limitations could be fully comprehended only in view of the circumstances of its suspension, inasmuch as the statute "inevitably reflects a value judgment" concerning valid and stale claims. Id. 421 U.S. at 463-64. Thus, it is clear under the Clayton Act that in cases involving parallel criminal and civil litigation, the tolling provisions are part and parcel of the four-year statute of limitations. This is, of course, a reflection of Congress's desire to aid private litigants to the extent they may glean benefits from the Government's prior action.

 While the Supreme Court's holding in Johnson, supra, clearly requires application of the tolling privileges to this case, the legislative history of RICO further compels the conclusion that adoption of the tolling provisions is uniquely appropriate in this case. In Agency Holding Corp. v. Malley-Duff & Assoc., 483 U.S. 143, 97 L. Ed. 2d 121, 107 S. Ct. 2759 (1987), in which the Supreme Court applied the Clayton limitation period, the Court pointed out that "even a cursory comparison of the two statutes reveals that the civil action provision of RICO was patterned after the Clayton Act." Id., 97 L. Ed. 2d at 130. Indeed, the Court stated:

Together with the similarities in purpose and structure between RICO and the Clayton Act, the clear legislative intent to pattern RICO's civil enforcement provisions on the Clayton Act strongly counsels in favor of application of the ...

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