Rutledge v. Boston Woven Hose & Rubber Co.

Decision Date07 June 1978
Docket NumberNo. 76-1231,76-1231
Citation576 F.2d 248
Parties1978-1 Trade Cases 62,117 M. D. RUTLEDGE, Appellant, v. BOSTON WOVEN HOSE AND RUBBER COMPANY, a Division of American Biltrite, Inc., a corporation, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Robert L. Wilson (argued), Los Angeles, Cal., for appellant.

Douglas C. Conroy (argued), Los Angeles, Cal., for appellee.

Appeal from the United States District Court for the Central District of California.

Before MERRILL and HUFSTEDLER, Circuit Judges, and THOMPSON, * District Judge.

HUFSTEDLER, Circuit Judge:

This appeal arises from the dismissal of the second of two antitrust lawsuits filed by plaintiff Rutledge against various hydraulic hose manufacturers and assemblers. Rutledge's first suit was filed in 1969 against five hose manufacturers and seven hose assemblers alleging a price fixing conspiracy in violation of Sections 1 and 2 of the Sherman Act and price discrimination in violation of the Clayton and Robinson-Patman Acts. (Rutledge v. Electric Hose and Rubber Co. (C.D.Cal.1971) 327 F.Supp. 1267 (hereinafter referred to as Rutledge I ).) The trial judge in Rutledge I entered judgment dismissing the action at the close of Rutledge's case and this court affirmed on January 30, 1975. (511 F.2d 668.)

On March 7, 1975, Rutledge filed the complaint in this case (hereinafter referred to as Rutledge II ). The Rutledge II complaint is almost a carbon copy of Rutledge I, except that (1) Boston Woven Hose and Rubber Company ("Woven Hose"), which had not been a party to the first suit, was named as a defendant in the second suit, 1 and (2) plaintiff averred that Woven Hose was guilty of price discrimination in granting a secret additional discount to certain favored customers and not to plaintiff. After plaintiff amended his complaint twice pursuant to stipulation, the defendant moved to dismiss the complaint for failure to state a claim; no answer was ever filed. The trial court granted the motion to dismiss, holding that plaintiff was collaterally estopped because the identical issues concerning the alleged conspiracy were decided against him in Rutledge I. It also held that the action was barred by the statute of limitations in that the four year limitations period had expired. (15 U.S.C. § 15b.)

The district court correctly decided that plaintiff was not free to relitigate in Rutledge II any of the issues which were conclusively adjudicated against him in Rutledge I. Thus plaintiff cannot relitigate any of the claims of antitrust violations or claimed conspiracies that were averred in Rutledge I and repeated in Rutledge II. Plaintiff's attempt to avoid the impact of issue preclusion (collateral estoppel) by claiming that it would be unfair to apply the doctrine to him is unsupported by the record. His argument is that he should not be foreclosed by the prior litigation because he had less than two years after the complaint was filed within which to complete his discovery and that his representation in propria persona in the prior case was no match for the array of law firms which represented the defendants in Rutledge I. These facts may explain why he lost Rutledge I, but they provide no legal basis for failing to apply issue preclusion to his second action.

Rutledge plausibly argues that issue preclusion does not apply in respect of his claim in Rutledge II that Woven Hose was guilty of price discrimination in its granting secret discounts to certain favored customers. We need not resolve that issue, however, because we are convinced that Rutledge's claim for relief based upon these secret discounts is barred by the statute of limitations.

Rutledge acknowledges that the conduct of which he complains occurred more than four years before he filed the complaint in Rutledge II. He argues, however, that he avoided the bar of limitations by successfully pleading that Woven Hose fraudulently concealed the existence of this claim for relief. Rutledge had the burden of both pleading and ultimately proving fraudulent concealment. To carry that burden, he had to plead facts showing that Woven Hose actively misled him, that he had neither actual nor constructive knowledge of the facts constituting his claim for relief despite his diligence in trying to discover the pertinent facts. (E. g., Dayco Corp. v. Goodyear Tire & Rubber Co. (6th Cir. 1975) 523 F.2d 389; City of Detroit v. Grinnell Corp. (2d Cir. 1974) 495 F.2d 448; Kansas City, Missouri v. Federal Pacific Elec. Co. (8th Cir. 1962) 319 F.2d 271.)

The sole averments in the Rutledge II complaint directed to the fraudulent concealment argument are as follows: "Defendant has fraudulently concealed the existence of the aforesaid price discrimination through the adoption of elaborate schemes, resorting to secrecy to avoid detection, and by denying that such discrimination or price differential existed." The only averment that is not conclusory is the allegation that defendant denied that such discrimination or price differential existed. Rutledge cannot rely upon conclusory statements to avoid the bar of limitations. He must plead with particularity the...

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    ...a court to grant equitable tolling. Thorman v. American Seafoods Co., 421 F.3d 1090, 1096 (9th Cir.2005); Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir.1978); see also Buckland, 155 Cal.App.4th at 807, 66 Cal.Rptr.3d 543 (to establish fraud through nondisclosure or ......
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    ...establish that they used due diligence in trying to uncover the facts." Volk, 816 F.2d at 1415–16 (citing Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir.1978), and Conerly v. Westinghouse Electric Corp., 623 F.2d 117, 120 (9th Cir.1980) ; accord Fox v. Ethicon Endo–S......
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    ...that the plaintiff's reliance on any of the defendant's concealing representations must be reasonable. Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir. 1978).7 In short, the plaintiff is not excused from his duty of diligence merely because the defendant, having once ......
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2 books & journal articles
  • Statute of Limitations
    • United States
    • ABA Antitrust Library Proving Antitrust Damages. Legal and Economic Issues. Third Edition Part I
    • December 8, 2017
    ...(holding that silence or passive conduct does not constitute fraudulent concealment); see also Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir. 1978) (“silence or passive conduct” not fraudulent “unless the relationship of the parties imposes upon the defendant a duty......
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    • ABA Antitrust Library Proving Antitrust Damages. Legal and Economic Issues. Third Edition Part III
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    ...Supp. 2d 777 (N.D. Cal. 2007), 58 Russ Togs v. Grinnell Corp., 426 F.2d 850 (2d Cir. 1970), 78 Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248 (9th Cir. 1978), 73 Ryan v. Moore, 2005 2 S.C.R. 53 (Can.), 343 S S.E.C. v. Wyly, 788 F. Supp. 2d 92 (S.D.N.Y. 2011), 60, 71 Sainsbury’s Su......

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