Wiren v. Paramount Pictures, 11589.

• Decision Date: 18 June 1953
• Docket Number: No. 11589.,11589.
• Citation: 206 F.2d 465,92 US App. DC 347
• Parties: WIREN v. PARAMOUNT PICTURES, Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

92 US App. DC 347, 206 F.2d 465 (1953)

WIREN v. PARAMOUNT PICTURES, Inc.

No. 11589.

United States Court of Appeals District of Columbia Circuit.

Argued May 11, 1953.

Decided June 18, 1953.

Petition for Rehearing Denied September 11, 1953.

Mr. James M. Landis, Washington, D. C., with whom Messrs. William T. Hannan and Benjamin F. Pollack, Washington, D. C., were on the brief, for appellant. Mr. Ralph F. Berlow, Washington, D. C., also entered an appearance for appellant.

Mr. William E. Leahy, Washington, D. C., with whom Mr. William J. Hughes, Jr., Washington, D. C., was on the brief, for appellee.

Before PROCTOR, BAZELON and FAHY, Circuit Judges.

FAHY, Circuit Judge.

The appellant, Myra Page Wiren, plaintiff below, in 1931 filed a suit in the United States District Court for the Southern District of New York against Paramount Famous Lasky Corporation, predecessor of defendant Paramount Pictures, Inc., and others, some of whom were defendants below, appellees here. Damages were sought because of the alleged plagiarism of a dramatic work, "Most", written by plaintiff, in the composition of the play "Death Takes A Holiday", produced first in New York City in 1930. The District Court, deciding against plaintiff on the merits, held that her rights in "Most" were not infringed by "Death Takes A Holiday". Wiren v. Shubert Theatre Corp., D.C.S.D.N.Y.1933, 5 F. Supp. 358. On appeal to the United States Court of Appeals for the Second Circuit a division of that court consisting of Circuit Judges Manton, Swan and Chase affirmed without opinion. Wiren v. Shubert Theatre Corp., 70 F.2d 1023, May 21, 1934, certiorari denied, 1934, 293 U.S. 591, 55 S.Ct. 105, 79 L.Ed. 685. On April 28, 1942, plaintiff moved that the Circuit Court of Appeals set aside its affirmance because of the alleged corruption of Judge Manton in the form of a bribe in May, 1932. The motion was denied May 13, 1942, by a division of the court consisting of Circuit Judges Swan, Clark and Frank. The Supreme Court denied certiorari, 1942, 317 U.S. 659, 63 S.Ct. 58, 87 L.Ed. 530. On June 12, 1945, the plaintiff filed with the Circuit Court of Appeals a second motion for rehearing accompanied with affidavits setting forth alleged newly discovered evidence. A division of the court consisting of Circuit Judges Swan, Chase and Clark denied this motion November 14, 1945.

After the proceedings above summarized in the United States District Court for the Southern District of New York and in the United States Court of Appeals for the Second Circuit, plaintiff filed the present suit in the United States District Court for the District of Columbia on September 28, 1948. The court below ordered the case transferred to the United States District Court for the Southern District of New York, but on appeal this court vacated the order of transfer. Wiren v. Laws, 1951, 90 U.S.App.D.C. 105, 194 F.2d 873. Upon remand the court below, Chief Judge Laws sitting, dismissed the complaint. In a memorandum opinion Chief Judge Laws ruled that the issues had been decided against plaintiff in the United States Court of Appeals for the Second Circuit and res judicata accordingly barred the present suit. The opinion also expressed the view that since the suit appeared to be for damages based on fraud it was barred by the statute of limitations.¹

We agree that the statute of limitations had run and on that ground affirm the order dismissing the complaint. In an action for fraud the three year limitations contained in § 12-201, D.C.Code (1951), applies. District-Florida Corp. v. Penny, 1933, 62 App.D.C. 268, 66 F.2d 794. While the period begins only upon discovery of facts out of which the claim of fraud arises, or from the time such facts should reasonably have been ascertained in the exercise of due diligence, Peyser v. Owen, 1940, 73 App.D.C. 64, 116 F.2d 298; P. H. Sheehy Co. v. Eastern Importing & Mfg. Co., 1915, 44 App.D.C. 107 L.R.A.1916F, 810; Johnson v. Taylor, D.C. D.C.1947, 73 F.Supp. 537, the pleadings do not contain allegations within this rule so as to enlarge the three year period. The original complaint in this jurisdiction was filed, as we have pointed out, September 28, 1948. The cause of action therein alleged is the bribe said to have occurred in May, 1932, discovered according to the complaint in 1937.² The decision of the Circuit Court of Appeals alleged to have been affected by the bribe was rendered May 21, 1934. All of these events were more than three years prior to the filing of the complaint.

On July 28, 1950, the complaint was amended by the addition of a paragraph to the effect that defendant continued the fraud grounded upon the bribe and concealed it from the United States Court of Appeals for the Second Circuit by wrongfully withholding evidence from and wrongfully presenting incomplete evidence to the court in the proceedings incident to the two motions, one filed in April, 1942, and the other in June, 1945. In this amendment there appear for the first time allegations of fraud in connection with the proceedings on the motions, which ended with the denial of the second motion on November 14, 1945, more than three years prior to the amendment. Here again nothing is alleged to enlarge the period of limitations beyond three years from the date of the fraud of which the amendment complains.

Rule 15(c), Fed.Rules Civ.Proc., 28 U.S.C.A., provides, however, that when a claim asserted in an amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading the amendment relates back to the date of the original pleading. This rule has been discussed in a number of cases. In L. E. Whitham Const. Co. v. Remer, 10 Cir., 1939, 105 F.2d 371, 375-376, it is held, "the rule is not applicable where the amendment introduces a different and additional claim or cause of action." In Barthel v. Stamm, 5 Cir., 1944, 145 F.2d 487, certiorari denied, 1945, 324 U.S. 878, 65 S.Ct. 1026, 89 L.Ed. 1430, in ruling that the amendment related back, the court pointed out in...