Kalmich v. Bruno

Decision Date28 June 1977
Docket NumberNo. 76-1882,76-1882
Citation553 F.2d 549
PartiesHayim KALMICH, Plaintiff-Appellant, v. Karl BRUNO, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Norman A. Handelsman, Robert Handelsman, Chicago, Ill., for plaintiff-appellant.

James G. Meyer, Lester E. Munson, Chicago, Ill., for defendant-appellee.

Before FAIRCHILD, Chief Judge, SWYGERT and PELL, Circuit Judges.

PELL, Circuit Judge.

This is a diversity case between plaintiff-appellant Hayim Kalmich, a citizen of Quebec, Canada, and defendant-appellee Karl Bruno, a citizen of Illinois. The district court, sitting in Illinois, dismissed the complaint for failure to state a cause of action on the basis that the claim was barred by the pertinent Illinois statute of limitations. 1 Kalmich seeks reversal on the grounds that the district court should have applied the longer statute of limitations of Yugoslavia, where the cause of action arose, that Bruno should be estopped to plead the statute of limitations in any event, and that one count of the complaint states an equitable claim not subject to the statute of limitations, but only to a laches defense which, it is asserted, does not apply to this case.


In reviewing the district court's dismissal of Kalmich's complaint, we assume the truth of these facts well-pleaded in that complaint. In 1941, Kalmich, a Jew, resided in Belgrade in his native Yugoslavia and operated and owned a textile importing business. In April of that year, the armies of Nazi Germany invaded and conquered Yugoslavia, forcing the incumbent government of Yugoslavia into exile. 2 The occupation forces shortly installed a General Plenipotentiary for the Economy in Serbia, whose responsibility was to "Aryanize" the economy by seizing and confiscating all businesses and property owned by Jews, solely because they were Jews.

Bruno is alleged to have voluntarily subordinated himself to the General Plenipotentiary 3 and when an order for the seizure of Kalmich's business was issued on June 24, 1941, Bruno was given the duties of managing and operating the business. He seized the business and proceeded to run it. In March of 1942, Bruno substantially understated the value of the business to his superiors to enable him to purchase it from them at a bargain price. That same month, he bought the business from the General Plenipotentiary for even less than the value he had previously stated. Thereafter, he resold the business to one Guc, presumably at a profit.

The complaint alleges that sometime prior to the defeat of the German occupation forces in Yugoslavia, Bruno "to avoid, prevent and frustrate any prosecution for his knowingly willful and malicious conduct, fled Yugoslavia for places unknown to the Plaintiff." After the end of the war, Kalmich spent substantial time, money, and effort unsuccessfully attempting to find Bruno for redress in a search that covered five countries. It was only in May of 1972 that Kalmich discovered, from sources not disclosed, that Bruno was living in Chicago, Illinois. This lawsuit followed.

Count I of the complaint seeks damage recovery under statutory provisions of Yugoslavian law which are summarized therein to provide the notice of foreign law issues required by Rule 44.1, Fed.R.Civ.P. One general provision referred to in the complaint is a broad repeal of all statutes, ordinances, decrees, and regulations enacted prior to the date of the Nazi invasion, and all those enacted by the Nazi occupation forces; presumably this repeal provision was an attempt to clean the slate for new laws enacted after the war. The remaining statutes, and their interrelationships, are important to the disposition of this case, and the pertinent paragraphs of the complaint summarizing these are therefore set out in full:

23. That at a time unknown to the Plaintiff but after the termination of World War II the nation of Yugoslavia enacted Article 125 of the Criminal Code (Article 125) which provides that anyone who confiscated belongings of another during World War II, for nonmilitary purposes, would be subject to criminal prosecution.

24. That in 1965, the nation of Yugoslavia enacted Article 134(a) of its Criminal Code (Article 134(a)) which provides that there shall be no statute of limitations upon the prosecution of those accused of violations of Article 125.

25. That on or about August 16, 1946, Sec. 1 of the Law Concerning the Treatment of Property . . . Taken Away From the Owner by the Enemy or its Helpers (Section 1) became effective in Yugoslavia, said Law providing a civil cause of action for those whose belongings were confiscated by the German occupation force.

26. That, in 1953, Section 20 of the Yugoslavian Statute of Limitations, as amended (Section 20), became effective, said Section providing that the statute of limitations upon criminal actions shall serve as the statute of limitations upon civil actions if the conduct complained of in the civil action could subject the Defendant to a criminal prosecution.

Actual damages, interest, and punitive damages totalling $1,826,208, plus costs and any post-judgment interest were sought.

Count II of the complaint, referring generally to the allegations of Count I, asserts that Bruno obtained Kalmich's property (the business) in an unlawful and tortious manner, and seeks recovery under a constructive trust theory in the same amounts as mentioned above, plus all profits and proceeds received by Bruno from his possession and sale of the business.


In considering the issues raised, we note at the outset the defendant's contention that in determining whether the district court misconceived or misapplied state law the appellate court is limited to determining whether or not the district court made permissible interpretations of the applicable state law, citing Harris v. Hercules, Incorporated, 455 F.2d 267, 269 (8th Cir. 1972). The defendant further contends that the reviewing court will not reverse a determination on the part of a federal district court judge of the local law of his state unless there is a firm conviction that it was clearly erroneous, citing Harris and Hogue v. Pellerin Laundry Machinery Sales Company, 353 F.2d 772, 776 (8th Cir. 1965).

We have no particular quarrel with these contentions nor with the assertion that under the circumstances described we should give deference to the district court judge's determination of local law. Here, however, in our opinion the ultimate resolution of the appeal turns upon the determination not only of Illinois law but also that of Yugoslavia, a "foreign country" under Rule 44.1, Fed.R.Civ.P. Irrespective of the deference to which a district court judge's determination of the local law is entitled, we regard the matter of foreign country law as purely a "question of law," as it is characterized in Rule 44.1, the resolution of which we are free to arrive at on the basis of our own independent research and analysis. For a general discussion of the scope of appellate review under Rule 44.1, see 9 Wright & Miller, Federal Practice and Procedure § 2446, at 414-15 (1971).


In diversity cases, of course, a federal court applies the substantive law of the state in which it sits. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Where the laws of more than one jurisdiction are at least arguably in issue, the Erie reference to the law of the forum state includes that state's choice of law rules. Klaxon Company v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481 (1941).

We think it clear, and neither party disagrees, that the Illinois courts would choose to apply the substantive law of Yugoslavia to this case. Yugoslavia was the site of the tort and the injury, and we can think of no argument that would demonstrate that Illinois has a more significant relationship with this case than has Yugoslavia. See Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593, 595 (1970). Moreover, the district court's cogent analysis, 404 F.Supp. at 61-63, demonstrates beyond any real question that this is the type of foreign cause of action that the courts of Illinois will enforce. See generally Hartness v. Aldens, Inc., 301 F.2d 228 (7th Cir. 1962); Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 366 (1949). Although only Count I is expressly rooted in Yugoslavian law, these conclusions apply with full force to Count II as well. Even if Illinois courts would apply the principles of Illinois equity jurisprudence to Kalmich's constructive trust theory, the underlying premise of the theory, the asserted unlawfulness and tortiousness of Bruno's seizure of Kalmich's business, would have to be measured by Yugoslavian law. See Ingersoll v. Klein, supra.

The choice of the applicable statute of limitations poses a different, and, in this case, a more difficult problem. State law barring an action because of a statute of limitations is sufficiently "substantive," in the Erie sense, that a federal court in that state exercising diversity jurisdiction must respect it. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Illinois has a five year statute of limitations governing actions for damages for injury to real or personal property. Ill.Rev.Stat.1975, ch. 83, § 16. As pleaded in the complaint, Yugoslavia's statute of limitations applicable here appears to be perpetual. The question then, if not the answer, may be simply put: which statute of limitations should be applied under Illinois' choice of law rules?

The basic choice of law rule pertaining to statutes of limitations, in Illinois as elsewhere, is that such statutes are "procedural in their nature," Hilberg v. Industrial Commission, 380 Ill. 102, 105, 43 N.E.2d 671 (1942), that they "generally affect only the remedy and not...

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