Englander Motors, Inc. v. Ford Motor Company
Decision Date | 17 July 1961 |
Docket Number | No. 14346.,14346. |
Citation | 293 F.2d 802 |
Parties | ENGLANDER MOTORS, INC., Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
Myron N. Krotinger, Cleveland, Ohio (M. Alfred Roemisch, Herbert A. Rosenthal, Myron N. Krotinger, of Lane, Krotinger & Santora, Cleveland, Ohio, on the brief), for appellant.
Charles W. Sellers, Cleveland, Ohio (Andrew C. Hartzell, Jr., of Thompson, Hine & Flory, Cleveland, Ohio, on the brief), for appellee.
Before MILLER, Chief Judge, and WEICK and O'SULLIVAN, Circuit Judges.
The action in the District Court was to recover treble damages under Section 4 of the Clayton Act for alleged violations of Sections 2(a) and 3 of the Robinson-Patman Act. 15 U.S.C.A. §§ 15, 13, 13a.
Defendant filed a motion for summary judgment on two grounds, namely, (1) that an action for treble damages under Section 4 of the Clayton Act cannot be brought for violations of Section 3 of the Robinson-Patman Act and (2) the action is barred by the Ohio statute of limitations. The District Court granted the motion on both grounds and dismissed the complaint. Plaintiff appealed.
In our judgment, the District Court was correct in holding that the action for treble damages under Section 4 of the Clayton Act could not be maintained for violations of Section 3 of the Robinson-Patman Act. The latter section is not an "antitrust law" within the meaning of Section 4 of the Clayton Act. Section 3 of the Robinson-Patman Act contains only penal sanctions for its violation. These are exclusive. The private remedy afforded by Section 4 of the Clayton Act cannot, therefore, be based on violations of Section 3 of the Robinson-Patman Act. Nashville Milk Co. v. Carnation Co., 1958, 355 U.S. 373, 78 S. Ct. 352, 2 L.Ed.2d 340; Safeway Stores, Inc. v. Vance, 1958, 355 U.S. 389, 78 S. Ct. 358, 2 L.Ed.2d 350; Ludwig v. American Greetings Corp., 6 Cir., 1959, 264 F. 2d 286.
There remains only the question whether plaintiff's cause of action under Section 4 of the Clayton Act for violation of Section 2(a) of the Robinson-Patman Act is barred by the Ohio statute of limitations.
At the time the cause of action arose there was no federal statute of limitations applicable to private actions for treble damages under the antitrust laws.1 In the absence of such a statute, the state statutes of limitation are applied. City of Atlanta v. Chattanooga Foundry & Pipe Works, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241; Northern Kentucky Telephone Co. v. Southern Bell Telephone & Telegraph Co., 6 Cir., 1934, 73 F.2d 333, 97 A.L.R. 133.
The pertinent Ohio Statutes of Limitation are as follows:
The District Court held that the present action was upon a statute for a penalty or forfeiture and was, therefore, barred by the one year Ohio statute of limitations. R.C. § 2305.11. It is the position of appellant that its action is one created by statute other than a forfeiture or penalty and that the six year Ohio statute of limitations applies. R. C. § 2305.07.
An examination of the federal decisions reveals that the application of state statutes of limitation to private antitrust actions for treble damages has not only produced different periods of limitation throughout the country, but also a divergence of opinion as to whether the remedies for violation of the antitrust laws are remedial in operation or constitute a penalty or forfeiture.
Cases construing state statutes of limitation holding that actions under the antitrust laws for treble damages are remedial are collected in footnote2 and those holding such actions are for a penalty or forfeiture are in footnote.3 The weight of authority is on the side of the remedial character of the action.
The Supreme Court held in City of Atlanta v. Chattanooga Foundry & Pipe Works, 203 U.S. 390, 27 S.Ct. 65, 66, 51 L.Ed. 241, that actions for treble damages under the antitrust laws were remedial and not for a penalty or forfeiture. Mr. Justice Holmes who wrote the opinion for the Court said:
The Court also held that the action was not "for statute penalties" and was, therefore, not governed by the one year Tennessee statute of limitations. Article 2772 (Shannon, 4469).
Chattanooga affirmed the decision of this Court reported in 127 F. 23, 28 (6 Cir., 1903). Judge Lurton, who wrote the opinion for the Court, said:
He further said:
"The whole subject of penal and compensatory actions has been so thoroughly considered in Huntington v. Attrill, 146 U.S. 657, 13 Sup. Ct. 224, 36 L.Ed. 1123, and Brady v. Daly, 175 U.S. 148, 20 Sup.Ct. 62, 44 L.Ed. 109, as well as by the very full and able opinion of Judge Clark in the court below in disposing of a demurrer to a plea, that we feel we can add nothing to the subject."
The Supreme Court of Ohio has not passed upon the precise question involved here. It has rendered decisions, however, which throw some light on what the Ohio law is on this subject. In Pittsburgh, Ft. Wayne & Chicago Ry. Co. v. Methven, 21 Ohio St. 586, the Court held:
"If a statute in the nature of a police regulation gives a remedy for private injuries resulting from the violations thereof, and also imposes fines and penalties at the suit of the public for such violations, the former will not be regarded in the nature of a penalty unless so declared." (1st syllabus.)
This case was cited as authority and relied on by the Circuit Court for the Eastern District of Tennessee in City of Atlanta v. Chattanooga Foundry & Pipe Co., 101 F. 900 which, as above indicated, was later appealed to this Court and the Supreme Court.
In Floyd v. Du Bois Soap Co., 139 Ohio St. 520, 41 N.E.2d 393, 395, reversed on other grounds in 317 U.S. 596, 63 S.Ct. 159, 87 L.Ed. 488, the Supreme Court of Ohio, in a case involving the Fair Labor Standards Act of 1938 (Title 29 U.S.C.A. § 216b) had this to say about penal laws:
It will be noted that the Supreme Court of Ohio followed Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L. Ed. 1123, which is the leading case on the subject and was also cited by the Supreme Court of the United States in Chattanooga as authority for its decision.
This Court cited Floyd v. Du Bois Soap Co., supra, in Northwestern Yeast Co. v. Broutin, 6 Cir., 133 F.2d 628, on the proposition that the...
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