Petition — Bruno v. Kalmich
Supreme Court brief1977
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No.
1 Supreme Court, U. 8.
FILED
7 7 50 7 * SEP or 1977
— —— — mf CLERK
In the
Supreme Court of the United States
Ooronnmn Team, 1977
KARL BRUNO,
Petitioner,
vs.
HAYIM KALMICH,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH OCIROUIT
Louw A. Surrn
Laster H. Munson
James d. Meyer
Attorneys for Petitioner
100 W. Monroe Street
Chicago, Illinois 60603
The Scheffer Press, Inc—(312) 263-6850
*
PAGE
. ] ¼ͥß]¾;ꝛ ] . 1
. wocsecesscccssscnceeneee 2
Questions Presented . . . . .. v veveseseeceseseedeseseseesesedeteseeetesese 2
. t%ͤͤK ͤ ͤ . 3
Statement 656 7
Reasons for Granting the Writ noc 9
ü] 16
755 la
CITATIONS
Cases ;
Anderson v. Linton, (7th Cir., 1949) 178 F. 2d 304 11
Bernhardt v. Polygraphie Co. of America, (1956)
350 U.S, 198, 76 8. Ct. 273, 100 L. Ed. 199. 9
Chandler v. U.S., (Ist Cir., 1948) 171 F. 2d 921, 15
Davis v. Mills, (1904) 194 U.S, 451, 24 8. Ct, 692,
IX 12
Dougherty v. Equitable Life Assur. Soe, (1934)
266 N.Y. 71, 193 N. N. 897 wcccsscsscsssesssesssssesersesesvens 15
Erie Ry. Co. v. Tompkins, (1938) 304 U.S. 64, 58
g. Ot. 817, 82 L. Ed. 1188 wc — 9
Guaranty Trust Co. v. York, (1945) 326 U.S. 99,
65 S. Ct. 1464, 89 L. Bd. 2079 f essen. 9
Hafer v. Herndon, (S. D. III., 1938) 22 F. Supp.
— ˙ . 11
Hilberg v. Industrial Commission, (1942) 380 III.
NI 11
ii
PAGE
Jackson v. Shuttle Worth, (1963) 42 Ill. App. 2d
ep EF ee 11
Klaxon Co. v. Stentor Electric Manufacturing Co.,
(1941) 313 U.S. 487, 61 8. Ot. 1020, 85 L. Ed.
— 9
Moscow Fire Ins. Co. of Moscow, Russia v. Bank
of New York and Trustees, (1937) 161 Mise.
903, 294 N. V. S. 648; (1939) 280 N.Y. 286,
20 N. E. 2d 758, Affm’d. 309 U.S. 624 vous 15
Smith v. Toman (1938) 368 III. 414, 14 N. H. 2d
— ũ 11
Statutes AvD Rroviations:
III. Rev. Stat. (1973), Ch. 83, Par. 16 voc 3, 10
Ill, Rev. Stat. (1973), Ch. 83, Par. 21 ee e 3, 10
Yugoslav Criminal Code, Art. 120 eee, 8, 10
Yugoslav Criminal Code, Art. IA (a) cocoon 4,10
Yugoslav Law Concerning Treatment Of Property
Abandoned During the War And Property
Taken Away From the Owner by the Enemy on
1.4K . ? 4,12
Yugoslav, Law Concerning the Statute of Limita-
e xxx 6, 10
Yugoslav, Law Concerning the Statute of Limita-
. 6, 10
Yugoslav, Law Concerning the Statute of Limita-
ee 6,12
ln Tun
SUPREME COURT OF THE UNITED STATES
Ocrosen Team, 1977
No.
OOOO rr
KARL BRUNO, ͤ„—
vs.
H,
HAYIM KALMIC *
OOOO
TITION FOR A WRIT OF CERTIORARI TO THE
ONITED STATES COURT GF APPEALS FOR THE
SEVENTH OIROUIT
Karl Bruno, Petitioner, by and through his attorneys,
Louis A. Smith, Lester H. Munson and James G. Meyer,
prays that a Writ of Certiorari issue to review the judg-
ment of the United States Court of Appeals for the
Seventh Cireuit entered in the above case on April 25,
1977.
OPINIONS BELOW
The opinion of the District Court for the Northern
District of Illinois is reported at 404 F. Supp. 57.
The opinion of the Court of Appeals for the Seventh
Circuit is reported at 553 F. 2d 549.
An order of the Court of Appeals for the Seventh Cir-
cuit denying a Petition for Rehearing was entered on
June 28, 1977.
JURISDICTION
A copy of the judgments and opinions of the District
Court and the Court of Appeals are appended to this
Petition in the Appendix at pp. la, 18a, The jurisdiction
of this Court is invoked under the provisions of 28
U.S.C, 1254(1) and 28 U.S.C, 2101 (e).
QUESTIONS PRESENTED
In 1972, the plaintiff brought this diversity action
against the defendant in the United States District
Court for the Northern District of Illinois, based upon
the alleged taking of his textile business by the defen-
dant in Belgrade, Yugoslavia in 1942. The plaintiff's suit
is based upon certain statutes of Yugoslavia creating a
cause of action for the alleged conversion of the prop-
erty. The plaintiff also alleged, that certain Yugoslav
Statutes create a perpetual statute of limitation that now
allows him to pursue this action in the Federal Courts.
The defendant contends that the statute of limitation
pled by the plaintiff is not a part of the substantive law
and therefore the statute of limitation of the forum
should be applied. The District Court found the statute
of limitation plead by the plaintiff was not part of the
substantive law and applied the forum statute which
caused the dismissal of this action. The Court of Appeals
reversed finding, that the Yugoslav statute of limitation
was part of the substantive law that created the cause
of action and remanded the case. The questions presented
are:
— — —
.
1. Whether the opinion of the Court of Appeals is
in conflict with this Courts’ holding in Davis
v. Mills (1904) 194 U.S. 451, 24 S. Ct. 692, 48
C. Ed. 1067.
2. Whether the opinion of the Court of Appeals will
require the District Court to adjudicate the De-
fendant’s guilt under provisions of the Yugo-
slav Criminal Code.
STATUTES INVOLVED
Ill. Rev. Stat. (1973), Ch. 83, Par. 16.
Oral contracts-Arbitration awards-Damages to
property-Possessory actions-Civil actions. & 15. Ex-
cept as provided in Section 2-725 of the Uniform
Commercial Code’’, approved July 31, 1961, as
amended, and Sectior 11-13 off The Illinois Pub-
lie Aid Code“, approved April 11, 1967, as amend-
ed, actions on unwritten contracts, expressed or
implied, or on awards of arbitration, or to recover
damages for an injury done to property, real or
personal, or to recover the possession of personal
property or damages for the detention or conver-
sion thereof, and all civil actions not otherwise
provided for, shall be commenced within 5 years
next after the cause of action accrued.
III. Rev. Stat. (1973), Ch. 83, Par. 21.
Barred foreign actions. § 20. When a cause of
action has arisen in a state or territory out of this
state, or in a foreign country, and, by the laws
thereof, an action thereon cannot be maintained
by reason of the lapse of time, an action thereon
shall not be maintained in this state.
Yugoslav Criminal Code, Article 125.
Whoever in violation of the rules of international
law at the time of war, armed conflict or occupa-
mS
tion, orders or executes willful killings, tortures or
inhuman treatment of the civilian population, in-
eluding therein biological experiments, causing
great suffering or serious injury to body or
health; unlawful deportation, transfers, forcible
denationalization or conversion of the population
to another faith; rape or compulsion to prostitu-
tion; use of measures of intimidation and terror,
taking of hostages, collective penalties, unlawful
taking to concentration camps and other unlawful
confinements, deprivations of rights to a fair and
impartial trial; compulsive enlistment in the arm-
ed forces of an enemy power, in its intelligence
service or administration; coercion to compulsive
labour; exposition of the population to starvation,
confiscation of property, pillage, unlawful and
arbitrary destruction or large-scale appropriation
of property not justified by military needs, impo-
sition of unlawful and disproportionately large
contribution and requisitions, devaluation of do-
mestie currency, or the unlawful issuance of cur-
rency, . . . . shall be punished by strict imprison-
ment for not less than five years or by death
penalty
(Translation by the Institute of Comparative Law,
Belgrade, 1964 Ed.)
Yugoslav Criminal Code, Article 134(a).
Criminal prosecution and enforcement of punish-
ment for crimes provided for by Articles 124-
128 of the present Ce Are not subject to the
statute of limitation.
(Translation by George Jovanovich, Senior Legal
Specialist, Library of Congress, Law Library,
European Law Division).
Yugslav, Law Concerning the Treatment of Prop-
erty Abandoned During the War or Property Taken
*
Away From The Owners by the Enemy or its Help-
ers, Section 1.
Sec. 1 All properties of physical persons and
legal entities in the territory of the Federal Peo-
ple’s Republic of Yvgoslavia which had to be
abandoned by their owners or holders during the
occupation of the country; property taken away
from such persons against their will by the occupy-
ing force and its helpers, with or without compen-
sation, for racial, religious, national or political
reasons; as well as property which under the
pressure of the occupying force, by legal acts or
otherwise, passed into the hands of third parties,
shall be returned to the respective owners or ten-
ants immediately, regardless of who holds their
property and on what grounds, on the day when
this Law becomes effective. (August 16, 1946).
Property shall not be considered abandoned if
the absentee owner left an authorized agent.
Citizens of the F. P. R. V. residing abroad who
were not registered with the representatives of
the F. P.R. V. in the state of their residence and
who were not willing to comply with the request
for their return home shall not be able to request
the return of property through an authorized
agent.
If property was destroyed, damaged or could
not be found, the owner may bring action for dam-
ages against responsible persons without losing
the right to claim war damage.
Property, in the sense of the present Law,
means especially real property, such as land,
houses, agricultural farms, forests, industrial en-
terprises with all installations; (it also means)
personal property, such as furniture, securities,
jewelry, claims, shares and partnership interests,
copyrights, rights of industrial property, shares
—
—6
with their inventories, and other rights in prop-
erty.
(Translation by George Jovanovich, Library of
Congress.)
Yugoslav, Law Concerning the Statute of Limita-
tions, Section 14.
Claims shall be barred after the expiration of a
10-year period, unless otherwise specifically pro-
vided for by law.
(Translation by George Jovanovich, Library of
Congress.,
Yugoslav, Law Concerning the Statute of Limita-
tions, Section 19.
Action for the recovery of damages shall be barred
after the expiration of 3 years after (the time)
the plaintiff learned about the damage and the
person causing it.
In any event such action shall be barred after the
expiration of 10 years after the day the cause of
action accrued.
Action for recovery of damages for breach of con-
tract shall be barred after the expiration of the
time specified for such action.
(Translation by George Jovanovich, Library of
Congress. )
Yugoslav, Law Concerning the Statute of Limita-
tions, Section 20.
If the damage was caused by a criminal act, and
a longer period of time was provided for the
prosecution of a crime, then an action for the re-
covery of damages shall be barred when the time
for the prosecution of the crime expires.
—— — ees _ eee -
— Tt
**
The stalling of the statute of limitation for the
prosecution of a crime entails the stalling of the
statute of limitation for a (civil) action to recover
damages.
The same rule applies to an action for preventing
the running of the statute of limitation.
(Translation by George Jovanovich, Library of
Congress. )
STATEMENT
This is a diversity case between the plaintiff, a citizen
of Quebec, Canada, and defendant, a citizen of IIlinois,
in which the plaintiff seeks damages under certain stat-
utes of Yugoslavia for the defendant’s alleged unlawful
purchase of the plaintiff’s business in 1942. This action
is brought some 30 years after the alleged unlawful con-
duct.
To overcome the defense that this action was barred
by lapse of time, the plaintiff pled various Yugoslav
Civil and Criminal Statutes which, he contends, creates
a perpetual cause of action against the defendant. The
plaintiff contended:
1. That sometime after 1942, the nation of Yugos-
lavia enacted Article 125 of the Criminal Code which
provides that anyone who confiscated another’s belong-
ings during World War II would be subject to criminal
prosecution.
2. That in 1965, Yugoslavia enacted Article 134(a) of
the Criminal Code which provides that there shall be
no statute of limitation for prosecution for violation of
Article 125;
3. That in 1946, Yugoslavia enacted a law (Section
1 of the Law Concerning Treatment of Property Aban-
doned During the War or Property, Taken Away from
the Owner by the Enemy on its Helpers), providing 1
civil cause of action for those whose belonigngs were
confiscated by the German Occupation Force in World
War II; and
4. That in 1953, Yugoslavia enacted Section 20 pro-
viding that the statute of limitation on criminal actions
shall serve as the statute of limitation in civil actions if
the conduct complained of in the civil action ‘‘could’’ sub-
ject the defendant to a criminal prosecution.
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 limitation. The Court found that the Yugoslav-
ian law asserted by the plaintiff was not so specifically
directed to the civil action as to warrant a finding that
it qualified that right, relying on Davis v. Mills (1904)
194 U.S. 451, 24 S. Ct. 692, 48 L. Ed. 1067.
On appeal, a majority of the Seventh Circuit Court
of Appeals (Fairchild, Chief Judge and Pell, Circuit
Judge), reversed the District Court and found that the
four provisions of Yugoslavian law asserted by the
plaintiff were so specifically directed to the civil action
as to find that it qualified that right under the test an-
nounced in Davis v. Mills, Supra, and therefore the ac-
tion was not barred by the Illinois statute. In a dissent-
ing opinion, Circuit Judge Swygert agreed with District
Judge Flaum’s conclusion, that Section 20 of the Yugo-
slavian statute of limitation was a general statute of
limitation, inapplicable in this case.
*
REASONS FOR GRANTING THE WRIT
The decision of the Court below should be reviewed
because it erroneously applies the principles announced
by this Court in Davis v. Mills (Supra) and the Illinois
Supreme Court in Smith v. Toman (1938) 368 III. 414,
16 N.E. 2d 478. The decision is in conflict with the Davis
opinion and similar Illinois Authority and, if allowed to
stand, would force the District Court to adjudicate the
defendant’s guilt or innocence under the criminal laws
of Yugoslavia.
I. THE MAJORITY OPINION OF THE COURT OF
APPEALS MIS-APPLIED THIS COURT'S OPINION
IN DAVIS V. MILLS (1904) 194 U.S. 451, 24 8. Ct.
692, 48 L. ED. 1067, WHEN IT HELD THAT THE
YUGOSLAVIAN LAW ASSERTED BY THE PLAIN-
TIFF WAS SO SPECIFICALLY DIRECTED TO
THE STATUTORY CAUSE OF ACTION AS TO BE
A PART OF THE SUBSTANTIVE LAW.
The instant action, based on diversity jurisdiction, re-
quires the application of the law of the State of Illinois.
Erie Ry. Co. v. Tompkins, (1938), 304 U.S. 64, 58 S. Ct.
817, 82 L. Ed. 1188. This rule governs in determining
choice of law questions, with the result that in such
cases a federal court applies the lex loci or the lex fort
precisely as would a court of the forum state. Bernhardt
v. Polygraphic Co. of America, (1956), 76 S. Ct. 273, 350
U.S. 198, 100 L. Ed. 119. Therefore, a claim which is
unenforceable in the courts of the state in which the fed-
eral court sits is equally unenforceable in the federal
court. Klaxon Co. v. Stentor Electric Co. (1941) 313 U.S.
487, 61 S. Ct. 1020, 85 L. Ed. 1477; Guaranty Trust Co.
v. York, (1945), 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 1188.
*
aw 10 a
The appropriate Illinois statute provides that actions
to recover damages for an injury done to property, real
or personal, has a five (5) year limitation, (Ill. Rev.
Stat. (1973), Ch. 83, par. 16). Further, III. Rev. Stat.
(1973), Ch. 83, par. 21, provides that where an action
arose in a foreign country and the law therefore bars
such an action, the action cannot be maintained in IIli-
nois.
It is also equally clear that the instant action is bar-
red by the Yugoslavian Statute of Limitations. Section
14 of the Law Concerning the Statute of Limitation pro-
vides: Claims shall be barred after the expiration of
a 10-year period, unless specifically provided for by
law.’’ Section 19 of the same law provides: Action for
the recovery of damages shall be barred after the expira-
tion of 3 years after (the time) the plaintiff learned
about the damage and the person causing it. In any
event such action shall be barred after the expiration of
10 years after the day the cause of action acerued.““
(Translation of the Law Concerning the Statute of Limi-
tations by George Jovanovich, Senior Legal Specialist,
European Law Division, Law Library, Library of Con-
gress).
The plaintiff's complaint alleges that this cause of ac-
tion arose in 1942, some 35 years ago. It is obvious that
considered in light of any of the above statutes, the
plaintiff’s claim is now barred.
In order to maintain his cause of action under See.
1 of the Yugoslavian law the plaintiff asserts that See.
20 of the civil law and Articles 125 and 134(a) of the
Yugoslavian Criminal Code apply to create a cause of
action with no limitation period, i.e, a perpetual cause
of action,
|
aft an
Illinois’ courts have consistently characterized astat-
utes of limitation as ‘‘procedural in their nature’’, and
have applied the limitations’ period of the forum state,
even when the cause of action to which they applied may
have arisen in and been governed by the substantive law
of another jurisdiction, Hilberg v. Industrial Commis-
sion, (1942) 380 III. 102, 43 N. F. 2d 671; Jackson v.
Shuttleworth, (1963) 42 III. App. 2d 257, 192 N. E. 2d
217.
Illinois’ courts have recognized an exception to this
rule, similar to the federal rule, where the foreign cause
of action contains a specified limitation period. In Smith
v. Toman, (1938) 368 III. 414, 420, 14 N. E. 2d 498, the
Court said:
Statutes of limitation relate to the question of rem-
edy by fixing a time within which a suit must be
brought. Those statutes which create a substantive
right unknown to the common law and in which time
is made an inherent element of the right so created,
are not statutes of limitation. (emphasis added)
To the same effect are federal cases that have applied
Illinois law in diversity cases:
An examination of the authorities shows that there
is apparent confusion in the decisions as to whether,
in a case of this kind, the statute of limitations of
the lex loci or that of the lex fori should govern.
However, cases holding that the statute of limita-
tions of the state where the cause of action arose
should be applied usually involve statutes creating
the cause of action, such as for wrongful death,
which statutes limit the time in which the statute-
created right to sue may be exercised. Restatement
Conflict of Laws, See. 605, Anderson v. Linton 7th
Cir., 1949) 178 F. 2d 304, 310; See also, Haefer v.
Hernden (5. D. III., 1938) 22 F. Supp. 523.
— — W
=—_ =
As the District Court pointed out in its opinion, most
of these cases seem to be based upon the opinion in
Davis v. Mills (Supra) in which this Court stated:
The common case is where the statute creates a new
liability and in the same section or in the same act
limits the time within which it can be enforced,
whether using words of condition or not, But the
fact that the limitation is contained in the same sec-
tion or in the same statute is material only as bear-
ing on construction. It is merely a ground for say-
ing that the limitation goes to the right created, and
accompanies the obligation everywhere. The same
conclusion would be reached if the limitation was in
a different statute, provided it was directed to the
newly created liability so specifically as to warrant
saying that it qualified the right. 194 U.S. at 454, 24
S. Ct. at 694.
Based upon this test of construction the district court
found that the perpetual limitation period asserted by
the plaintiff was not specifically directed to the newly
created Yugoslavian liability for the following reasons.
First, the court found that the Law Concerning Treat-
ment of Property ... taken away from the Owner by
the Enemy on its Helpers’’, which creates the plaintiff’s
cause of action, was enacted in 1946 without any in-
cluded time limitation. Second, Article 134(a) of the
Criminal Code was enacted in 1965 and was specifically
directed to Article 125 of the Criminal Code with no
mention of, or reference to, any civil cause of action
such as created by Section 1. Third, Section 20 of the
Yugoslav statute of limitation was enacted in 1953 and
was applicable to any civil cause of action which occurred
as a result of criminal acts, such as arson, burglary, van-
dalism and seizure of personal property during wartime,
= =
and was not specifically directed to Section 1. Finally,
the court pointed out the perpetual statute of limitation
that the plaintiff seeks to impose, must be applied
through another statute; Section 20, must be applied
through Article 134(a) which in turn was specifically
directed only to certain criminal offenses and not to the
civil action the plaintiff seeks to impose, It is also note-
worthy that these laws relied on by the plaintiff were
enacted after the cause of action was created by See-
tion 1; Article 134(a) of the Criminal Code was enacted
19 years afterward; and, Section 20 of the Yugoslav
statute of limitation was enacted 7 years after Section 1.
These facts led the district court to conclude that See-
tion 20 was not so specifically directed to Section 1 so as
to warrant the conclusion that it qualified that section
and that, therefore, it was not part of the substantive
law. For this reason the procedural law of the forum
would apply to bar the action.
Based upon these same observations and case law, the
majority of the Court of Appeals felt that Section of
the Yugoslav law was so specifically directed to Section
1 as to be a part of the substantive law. The defendant
suggests that the majority opinion is in conflict with the
existing case law as applied by Illinois courts and fed-
eral diversity courts and, along with the dissenting judge
and the District Court judge, that allowing the applica-
tion of the specificity exception in this way would com-
pletely nullify the general rule.
**
U. If THE YUGOSLAVIAN STATUTE OF LIMITA-
TION DOES APPLY TO THIS CASE AS ALLEGED
IN THE PLAINTIFF'S COMPLAINT, THE DIS.
TRICT COURT MUST ADJUDICATE WHETHER
OR NOT THE DEFENDANT Is GUILTY OF A VI.
OLATION OF THE YUGOSLAV ORIMINAL CODE.
Through the attempted use of Section 20 of the Yugos-
lavian Law Concerning the Statute of Limitations, the
plaintiff seeks to circumvent the clear meaning of the
applicable sections of the Statute by incorrectly render-
ing the substance of Section 20 in paragraph 22 of his
complaint, and, suggesting that this incorrect version of
Section 20 be read together with certain Sections of
the Yugoslavian Criminal Code.
Section 20 of the Yugoslavian Law Concerning the
Statute of Limitations provides: ‘‘If the damage was
caused by a criminal act, and a longer period of time
was provided for the prosecution of a crime, then an
action for the recovery of damages shall be barred when
the time for the prosecution of the crime expires.“ (Trans-
lation by George Jovanovich, Library of Congress). The
substance of this statute is misrepresented in paragraph
22 of the plaintiff's complaint wherein he pleads that
Section 20 applies to ‘‘civil actions if the conduct com-
plained of in the civil action could subject the defendant
to a criminal prosecution’’, The subtle difference in
meaning between what the statute says and what the
plaintiff alleges it says produces serious consequences
when applied to the situation presented in the instant
suit. Accepting the plaintiff’s version produces a result
wherein the mere accusation of criminal conduct by the
plaintiff makes the defendant liable to defend a suit
for civil damages when his prosecution for the alleged
crimes has never been undertaken or even contemplated.
unifies
The unambiguous wording of Section 20 of the Yugos-
lavian Law Concerning the Statute of Limitations clearly
requires a judicial finding that the damage to property
allegedly caused by the defendant was done by his
criminal act before Section 20 is operable. In this case
the criminal act allegedly done was a ‘‘war crime’’ with-
in the meaning of Article 125 of the Yugoslavian Crim-
inal Code, Therefore, in order to apply Section 20 in
the instant case the district court would have to ad-
judicate the defendant to be guilty of crimes within the
meaning of Article 125. It would seem to be elementary
law that no American court has the jurisdiction, or the
disposition to make such a determination. Citations for
the proposition that American courts will not enforce
the penal laws of other states or countries are numerous.
Moscow Fire Ins. Co. of Moscow, Russia v. Bank of New
York and Trustees, (1937) 161 Mise. 903, 294, N. V. S.
648 (1939) 280 N. V. 286, 20 N. E. 2d 758, Aff. 2d 309 U.S.
624; Chandler v. U.S., 171 F. 2d 921. Dougherty v.
Equitable Life Assur. Soc, (1934) 266 N. V. 71, 193 N. E.
897.
It is the defendant’s position that before this court
could apply Section 20 of the Yugoslavian Statute of
Limitations to this action it would have to reach a decision
on the applicability of a foreign penal law to the defen-
dant. This would place federal courts in a position in
which would be adjudicating foreign war crime statutes
in civil causes of action, a situation beyond the jurisdic-
tion of United States Courts.
— 16 —
CONCLUSION
For the reasons set forth above, it is respectfully sub-
mitted that this petition for a Writ of Certiorari should
be granted.
Respectfully submitted,
Louis A. Smirx
Lester E. Munson
James G. Meyer
100 W. Monroe Street
Chicago, Illinois 60603
Attorneys for Petitioner
-— la—
APPENDIX
HAYIM KALMICH,
Plaintiff,
v.
KARL BRUNO,
Defendant.
No. 74 C 3187.
United States District Court,
N. D. Illinois, E. D.
Oct. 14, 1975.
MEMORANDUM OPINION AND
ORDER
FLauu, District Judge:
This is an action for damages arising from the allegedly
tortious seizure the plaintiff’s textile business in Bel-
grade, Yugoslavia in 1942. The plaintiff invokes this
court’s diversity jurisdiction pleading that he is a citizen
of Quebec, Canada and the defendant, Karl Bruno, is
a citizen of the state of Illinois. [28 U.S.C. § 1332.]
This cause of action is based on a Yugoslavian statute
entitled Law Concerning the Treatment of Property...
Taken Away From the Owner by the Enemy or its
Helpers’’ which created a civil cause of action for per-
sons whose property was confiscated by the German
occupation forces during World War II.
The complaint alleges that in June of 1941, the Field
Commander of the German Army in Belgrade issued
orders for the seizure of the plaintiff’s business to
effectuate a general program of confiscation of the Jewish-
owned industries of occupied territories. The plaintiff
in this cause, Hayim Kalmich, owned a textile business
in Belgrade which was allegedly seized by the defen-
**
dant Bruno in his capacity as a subordinate to the
General Plenipotentiary for the Economy of Serbia. The
complaint alleges that from June of 1941 until March
of 1942, the defendant served as an administrator (Kom-
misar Leiter) of the plaintiff’s business. Thereafter, the
defendant allegedly converted and appropriated the plain-
tiff’s business for his own personal use and possession
by acquiring it from one Karl Foerster, another official
of the General Plenipotentiary for the Economy in
Serbia, at less than its actual value. The complaint also
alleges that the sole reason for the seizure and confisca-
tion of the plaintiff’s business was his religious beliefs
and not military purpose or necessity. Subsequent to
these events, the defendant allegedly left Yugoslavia
and he was located by the plaintiff in this state in 1972.
Four Yugoslavian statutes provide the basis for the
cause of action plaintiff seeks to assert in this federal
forum. As an analysis of these statutes is critical for
the resolution of the pending motions, they are set
forth verbatim as pleaded in the complaint.
719. That at a time unknown to the Plaintiff but
after the termination of World War IT the nation
of Yugoslavia enacted Article 125 of its Criminal
Code which provides that anyone who confiscated
belongings of another, during World War II, for
non-military purposes, would be subject to criminal
prosecution.
720. That in 1965, the nation of Yugoslavia en-
acted Article 134(a) of its Criminal Code which
provides that there shall be no statute of limitations
upon the prosecutions of violations of Article 125.
721. That on or about August 16, 1946 Section 1
of the ‘‘Law Concerning the Treatment of Property
. . Taken Away From the Owner by the Enemy
or its Helpers’’ became effective in Yugoslavia, said
law providing a civil cause of action for those whose
— were confiscated by the German occupation
orce,
— —
722. That, in 1953, Section 20 of the Yugoslavian
Statute of Limitations, as amended, 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 com-
plained of in the civil action could subject the defen-
dant to a criminal prosecution.
For purposes of the pending motions these foreign stat-
utes will be taken as true in the form in which they have
been pleaded. F.R.C.P. 44.1. See generally, Crespo v.
United States, 399 F.2d 191, 185 Ct.Cl. 127(1968).
[1, 2] Before the court are the defendant’s motion
to dismiss the complaint and the defendant’s motion to
strike certain paragraphs of the complaint. The motion
to dismiss advances three grounds for dismissal: failure
to institute this action within the applicable statute of
limitations, failure to join Karl Foerster as an indis-
pensible party, and res judicata by virtue of a previous
award of damages in favor of this plaintiff by the
Yugoslavian War Crimes Commission in 1946.2 The
While not essential to this court’s resolution of the
pending motions, the court notes that the defendant has
failed to demonstrate the indispensability of Karl Foers-
ter pursuant to Rule 19. The complaint does not allege
any facts which would indicate that Foerster is necessary
for a complete adjudication of the case or that he has
a material interest in the subject matter of this suit.
See generally, LeBeau v. Libby Owens Ford, 484 F.2d
789 (7th Cir. 1973); Eads v. Sayen, 281 F.2d 791 (7th
Cir. 1960); Lubin v. Chicago Title & Trust Co., 260 F.2d
411 (7th Cir. 1958).
The defense of res judicata cannot be sustained in the
absence of evidence that the Yugoslavian award of dam-
ages in 1946 involved the same parties, subject matter,
and cause of action as the pending litigation. See, 4
Schools of Chicago v. Cummins, 12 III. 2d 376, 146 N. E.
2d 42 (1957); Miller v. Shell Oil Co., 345 F.2d 891 (10th
Cir. 1965).
—
motion to strike contends that certain paragraphs of the
plaintiff’s complaint contain extraneous and scandalous
matter. For the reasons set forth herein, the court finds
the statute of limitations defense to be dispositive, thus
the remaining issues in the motion to dismiss and the
motion to strike need not be addressed.
[3, 4) A federal court exercising diversity jurisdiction
is bound by the substantive law and the conflicts of law
rules of the state in which it sits. Erie Ry. Co. v. Tomp-
kins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938);
Klazon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61
S.Ct. 1020, 85 L.Ed. 1477 (1941). Thus this court must
proceed as would another court’’ of Illinois in evalua-
ting the enforcibility and viability of the plaintiff’s claim.
See, Allstate Insur. Co. v. Charneski, 286 F.2d 238 (7th
Cir. 1960). The enforcibility of a foreign cause of action
and the viability of that action under the applicable stat-
ute of limitations are distinct issues, thus the two will
be examined separately.
Enforcibility
[5-7] Rights of action accruing under foreign law
which are transitory, not penal in nature, and which do
not violate public policy have been recognized and en-
forced in the courts of Lllinois. Clubb v. Clubb, 402 III.
390, 84 N.E.2d 366 (1949); Mutual Service Casualty In-
sur. Co. v. Providence Mutual Casualty Co., 25 Ill.App.2d
429, 166 N.E.2d 316 (1960). The nature of the instant
cause of action is tortious conversion, a transitory claim
attaching personal obligation, which under general prin-
ciples of comity may be enforced against the tortfeasor
wherever he is found. Hanna v. Grand Trunk Ry. Co.,
41 IIl. App. 116 (1891); United Biscuit Co. v. Voss Truck
Lines, 407 III. 488, 95 N.E.2d 439 (1950). Although the
plaintiff seeks significant monetary damages, the cause
of action asserted against this defendant cannot be charac-
terized as penal in nature because it is not equivalent to
public vindication of public wrongs. Huntington v. Attrill,
12
146 U.S. 657, 13 S. Ct. 224, 36 L. Ed. 1123 (1892); Evey
v. Mexican Central Ry. Co., 81 F. 294 (5th Cir. 1897);
Salzman v. Boeing, 304 III. App. 405, 26 N. E. 2d 696 (1940).
Superior Laundry & Linen Supply Co. v. Edmanson-Bock
Caterers, Inc., 11 Ill.App.2d 132, 136 N.E.2d 610 (1956).
[8] Thus the focal comity issue is whether the recog-
nition of the Yugoslavian Civil action is appropriate ac-
cording to Illinois public policy considerations.’ In Hart-
ness v. Aldens, Inc., 301 F.2d 228 (7th Cir. 1962) the
Seventh Circuit Court of Appeals summarized the Illinois
view on the enforcibility of foreign causes of action‘
and adopted the broad comity standard enunciated in
Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198
(1918):
A foreign statute will generally be enforced even
though the forum lacks a similar statute, unless the
foreign law is against public policy. Our own scheme
of legislation may be different. We may even have
no legislation in the subject. That is not enough to
show that public policy forbids us to enforce a foreign
right . . . The courts are not free to refuse to en-
force a foreign right. They do not close their doors
unless help would violate some fundamental prin-
ciple of practice, some prevalent conception of good
morals, some deep rooted tradition of the common
weal. 120 N.E. at 201-02.
*A federal court exercising diversity jurisdiction must
adhere to the articulated public policy of the state in
which it sits. Griffin v. McCoach, 313 U.S. 498, 61 S.Ct.
1023, 85 L.Ed. 1481 (1941). |
In this country, courts will generally enforce the law
of the place where the injury occurred unless to do so is
contrary to the law, morals or policy of the forum.
Chicago & E. & I. RR. Co. v. Rouse, 178 III. 132, 52
N. E. 951 (1899). If the relief sought is against the law
of the forum state the relief will Ee denied. Whitney v.
Madden, 400 III. 185, 79 N.E.2d 593 (1948).
8
[9] For purposes of determining the enforcibility of
a foreign cause of action, the public policy investigation
is not directed toward evidence of positive condonation
of that foreign cause of action by statutory or case
authority in Illinois. Millsap v. Central Wisconsin Mo-
tor Transport Co., 41 Ill.App.2d 1, 189 N.E.2d 793 (1963).
Rather this inquiry may be framed solely in the nega-
tive to determine whether any Illinois statutory or case
authority indicates that a civil action for seizure of prop-
erty during time of war is repugnant or antagonistic to
Illinois policy.“ No authority has been cited by the par-
ties or located by the court which would preclude the
maintenance of this action in the forum. However, as
the Yugoslavian statute asserted by the plaintiff was
enacted subsequent to the acts alleged in the complaint,
the possibility that the Yugoslavian statute is retroactive
legislation, imposing ex post facto liability antagonistic
to Illinois public policy, must be examined.
{10, 11] As a general rule the intended retroactive
effect of a statute should be recognized and enforced to
the extent that it modifies a pre-existing remedy rather
than imposes new liability. See generally, U.S. Steel
Credit Union v. Knight, 32 III. 2d 138, 204 N.E.2d 4
(1965); Ogdon v. Gianakos, 415 III. 591, 114 N.E.2d
686 (1953). The intended retroactive effect of the statute
plaintiff asserts is this forum, the ‘‘ Law Concerning Treat-
ment of Property... Taken Away From its Owner By
the Enemy or its Helpers’’, is clear from the statutory
language. (Paragraph 19 of plaintiff’s complaint, supra.)
* While this court must predicate the determination as
to the enforcibility of the Yugoslavian statute upon
Illinois public policy, it is interesting to note that the
United States has articulated a policy providing for
the compensation of losses sustained by American citizens
in Europe and Asia during the Second World War. War
Claims Act, 50 U.S.C.App. § 2001 et seq. See also, United
States v. Hermann Goering. (Report of the Nuremburg
Trials) 6 F.R.D. 73 (1946).
*
This intended effect may be recognized if the statutory
liability is equivalent to a pre-existing, non-codified liabil-
ity for seizure of personal property during wartime for
personal use. The plaintiff’s cogent brief on this subject
traces the history of American and international law
delineating the confiscation rights of belligerent nations.
See, The Prize Cases, 67 U.S. (2 Black) 635, 17 L.Ed.
459 (1862); The 1907 Hague Convention Articles on
Warfare, 36 Stat. 2277. On this basis the court finds it
proper to conclude that the Yugoslavian statute is a codifi-
cation of a pre-existing liability which is not tantamount
to ex post facto legislation. As such, the intended retro-
active application of this statute does not offend Lllinois
public policy.
Accordingly, the court concludes that the Yugoslavian
civil action is enforceable in this forum as it is not an-
tagonistic to any articulated Illinois public policy, and it
appears to be consistent with generally recognized princi-
ples of international jurisprudence.
Viability
Having found that the Yugoslavian civil action may be
recognized and enforced in this forum, the court must de-
termine the applicable statute of limitations to ascertain
the viability of the plaintiff’s claim. The defendant cor-
rectly argues that the five year Illinois statute of limita-
tions governing actions to recover damages for injury to
real or personal property controls the pending litigation.
II. Rev. Stat. ch. 38, § 16 (1973). As the plaintiff’s claim
arose in 1942 the court finds that the five year statute bars
the maintenance of this action in this forum.
[12, 13] The bar of the statute of limitations is ordi-
narily viewed as an affirmative defense which may be
raised by motion to dismiss if the applicability of the
statute is apparent from the face of the complaint. See
generally, Stanley v. Chestak, 34 Ill.App.2d 220, 180 N.E.
2d 512 (1962); Anderson v. Linton, 178 F.2d 304 (7th Cir.
1949). Illinois courts have consistently characterized stat-
utes of limitations as procedural, affecting only the rem-
edy and not the substantive rights of the parties, Jackson
v. Shuttleworth, 42 III. App. 2d 257, 192 N.E.2d 217 (1963).
They do, however, distinguish from those statutes which
create a right in which time is an element.
Statutes of limitation relate to the question of remedy
by fixing a time within which a suit must be brought.
Those statutes which create a substantive right un-
known to the common law and in which time is made
an inherent element of the right so created, are not
statutes of limitation. Smith v. Toman, 368 III. 414, 14
14 N.E.2d 478 (1938).
See also, Shelton v. Woolsey, 20 Ill.App.2d 401, 150 N. E.
2d 241 (1959). Illinois courts, and federal courts exercis-
ing diversity jurisdiction, have noted that “in those cases
where the statute of limitations is not a part of the cause
of action .. it is purely a procedural matter, and is to
be governed by the law of the forum.“ Haefer v. Herndon,
22 F. Supp. 523 (S. D. III. 1938). Numerous state and federal
cases have espoused this substantive-procedural dichotomy,
but few have indicated the rationale for the distinction.
The dichotomy has been adopted in rote fashion and the
analysis has been reduced to a mechanical investigation
as to whether the foreign statute includes a specific time
limitation on the exercise of the right.
The first reported analysis of the substantive-procedural
dichotomy in selecting the controlling statute of limita-
tions appears in The Harrisburg, 119 U.S. 199, 7 S.Ct. 140,
30 L.Ed. 358 (1886). The Court held that where “the lia-
bility and the remedy are created by the same statutes,
. . « the limitations of the remedy are therefore to be
treated as limitations of the right“. 119 U.S. at 214, 7 S. Ot.
at 147. In Davis v. Mills, 194 U.S. 451, 24 8.Ct. 692, 8 L. Ed.
1067 (1904), Mr. Justice Holmes noted that the distinction
between substantive and procedural statutes of limitations
may often be the product of judicial characterization rather
=
than legislative intent. The Court offered the following
principle of construction :
; The common case is where the statute creates a new
liability and in the same section or in the same act
limits the time within which it can be enforced,
whether using words of condition or not. But the fact
that the limitation is contained in the same section or
in the same statute is material only as bearing on
construction. It is merely a ground for saying that the
limitation goes to the right created, and accompanies
the obligation everywhere. The same conclusion would
be reached if the limitation was in a different statute,
provided it was directed to the newly created liability
so specifically as to warrant saying that it qualified
the right. 194 U.S. at 454, 24 S.Ct. at 694.
The advantage of this approach is that it does not “lead
American courts into the necessity of examining . . the
unfamiliar peculiarities and refinements of different for-
eign legal systems.” Bournias v. Atlantic Maritime Co.,
220 F.2d 152, 156 (2d Cir. 1955). This principle sufi
ciently protects the interests of the forum state and in-
sures moderate predictability of outcome. The premise
underlying this specificity test is one of comity: a court
enforcing a foreign statute in derogation of the common
law should recognize the express intention of the foreign
legislature by enforcing the right with its attendant quali-
cations. O’Neal v. National Cylinder Gas Co., 103 F.Supp.
720 (N. D. III. 1952).
114] In applying the specificity test to the statutes in
the instant case, the court concludes that.the Yugoslavian
right is not qualified by a Yugoslavian remedy. The civil
action created by the “Law Concerning Treatment of Prop-
erty .. Taken Away from the Owner by the Enemy or
its Helpers” became effective in Yugoslavia in 1946, As
plead in the plaintiff’s complaint, that statutory right is
not conditioned by an included specific time limitation.
(Paragraph 21 of plaintiff's complaint, supre.) In 1965
the Yugoslavian legislature provided that there shall be
no statute of limitations for the criminal prosecution of
war crimes, (Paragraph 20 of plaintiff's complaint, supra.)
That act was expressly directed to criminal prosecutions
pursuant to Article 125 of the Yugoslavian Criminal Code,
but it did not specifically provide any extension of the
statute of limitations for recovery by civil action under
Article 134(a). (Paragraph 19 of plaintiff's complaint,
supra.) The 1953 Yugoslavian Statute of Limitations is
facially applicable to any civil action which accrues as the
result of acts which would subject the defendant to a
criminal prosecution, (Paragraph 22 of plaintiff's com-
plaint, swpra.) This statute of limitations was enacted
seven years subsequent to the civil action created in Ar-
ticle 134(a), without any apparent reference to it. As set
forth in the plaintiff's complaint, Section 20 of the Yugo-
slavian Statute of Limitations appears to be equally ap-
plicable to civil actions the result of criminal acts such
as arson, burglary, vandalism or seizure of personal prop-
erty during wartime. Examining the foreign laws as plead
in the complaint, the court concludes that the Yugoslavian
statute of limitations asserted by the plaintiff is a general
statute of limitations, not so specifically directed to the
civil action asserted as to warrant a finding that it quali-
fies that right. Davis v. Mills, supra.
The court finds that the Yugoslavian statute asserted by
the plaintiff is a general statute of limitations, not specif-
ically directed to the plaintiff's cause of action, and under
Illinois law, not applicable in the instant case. As the
Yugoslavian statute of limitations is not substantive in
nature, the procedural statute of limitations of the forum
governs.
115] The plaintiff contends that if the five year Illinois
statute of limitations is found to control this foreign ac-
tion, the doctrine of equitable estoppel should preclude
the Illinois defendant from asserting that statute as a
bar. The plaintiff argues that one who flees the jurisdiction
in which he has allegedly committed a tort to avoid an
=
action for damages by the injured party,’ should not be
rmitted to rely on the statute of limitations defense.
ecognizing that no Illinois court has adopted this posi-
tion, the plaintiff has structured his argument in reliance
on precedent from other jurisdictions. A diversity court,
as another court of Illinois, should adopt the best or more
reasonable approach when ruling on novel state issues.
See e. g., Fille v. Kickoff Publishing Co., 454 F.2d 1288
(6th Cir, 1972); Gillam v. J. C. Penny Co., 341 F.2d 457
(7th Cir, 1965). The court may look beyond the forum
state to prudently select the best law of other jurisdictions
to govern state novel issues.
The doctrine of equitable estoppel may be applied when
“in all the cireumstances of the case conscience and duty
of honest dealing should deny one the right to repudiate
the consequences of his representations or conduct.” Noel
v. Teffeau, 116 N.. Eq. 446, 174 A. 145 (1934). This broad
statement may pertain to the instant litigation in light of
plaintiff's allegation that the defendant Bruno willfully
absented himself from the place where the claim arose to
avoid the legal consequences of his acts. However, an ex-
amination of the cases relied upon by the plaintiff indi-
cates that no court has held that the defendant’s absence
alone constitutes grounds for application of the doctrine
of equitable estoppel.
[16] Noel v. Teffeau, supra, involved a statutory duty
to notify the party wronged, breach of which precluded
the plaintiff from knowing who, not where, the potential
defendant might be. In the cases cited by the plaintiff,
each defendant materially misrepresented either his iden-
tity or his location, Rudikoff v. Byrne, 101 N.J.Super. 29,
Paragraph 16 of the plaintiff's comes alleges:
“That a time unknown to the Plaintiff but before
the defeat of the German Occupation army in Yugo-
slavia, the defendant, to avoid present and frustrate
— prosecution for his knowledge, willful and ma-
licious conduct, fled Yugoslavia for places unknown
to the plaintiff.”
**
242 A. 2d 880 (1968); Application of Nationwide Mutual
Insur. Co., 39 Mise.2d 782, 241 N. v. S. 2d 589 (1962) ; Mo-
Campbell v. Southard, 62 Ohio App. 339, 23 N. E. 2d 954
(1987); Brown v. Burke, 155 Ill. App. 249 (1910). This
plaintiff's complaint fails to allege any such misrepresen-
tation, asserting only that the defendant allegedly fled
Yugoslavia to avoid the legal consequences of his acts.
Further, the interest of the forum in providing a remedy
for tortious conduct committed within its jurisdiction was
a critical factor in each case relied upon by the plaintiff,
which is not present in the pending litigation.
Lastly, the plaintiff argues that Gill v. Gill, 56 III. 2d
139, 306 N. E. 2d 281 (1974) evidences an inclination by an
Illinois court to apply the equitable estoppel doctrine in
appropriate circumstances. The estoppel theory in Gill
arose in the context of post decree child support payments.
The plaintiff in Gill filed suit thirteen years after the ef-
fective date of the divorce decree. The Illinois statutory
duty of support has no restrictive statute of limitations,
and the defendant relied on the equitable doctrine of
laches. The court found that in the absence of evidence
that defendant resided in the county or that the plaintiff
had knowledge of the defendant’s location, general alle-
gations of laches were insufficient to maintain the defense.
See, Pyle v. Farrell, 12 III. 2d 547, 147 N.B.2d 341 (1958).
This court cannot find authority for the extension of the
equitable estoppel theory advocated by the plaintiff in the
Gill case. It is neither factually nor legally analogous to
the case under consideration. It cannot be viewed as sup-
port for the proposition that an Illinois court would be
willing to adopt the estoppel theory advocated by the
plaintiff.
Accordingly, the court finds that the applicable Illinois
statute of limitations of five years for injury to real and
personal property has not been tolled by any established
action of the defendant. [III. Rev. Stat. (1973), ch. 83, § 23
(1973) (tolling by concealment of the existence of a cause
of action).] As the plaintiff's cause of action arose in 1942,
the maintenance of this claim in an Illinois forum is barred.
—
(17, 18] The plaintiff has suggested that the issues of
this case are governed by the conflicts rule enunciated in
Ingersoll v. Klein, 46 III. 2d 42, 262 N.B.2d 593 (1970) that
the “law of the place where the injury occurred should
determine the rights and liabilities of the parties, unless
Illinois has a more significant relationship with the parties
in which case the law of Illinois should apply”. 262 N. E.
2d at 595. In the five years since Ingersoll adopted the
“most significant relationship” test,’ Illinois courts have
uniformly applied that conflicts rule in the determination
of rights and liabilities in the areas of capacity, guest
statutes, and standards of care. No Illinois court has in-
dicated that Ingersoll in any way affects the long stand-
ing Illinois statute of limitations substantive-procedural
dichotomy, and no Illinois court has applied Ingersoll as
the touchstone in a choice of statute of limitations analy-
sis. One federal court has hinted at the potential use of
Ingersoll in choice of statutes of limitations issues, but
noted that “Jngersoll does not speak to the issues of where
and when a cause of action arises, but rather goes to the
question of what substantive law shall govern it.” Klon
dike Helicopters Ltd. v. Fairchild Hiller Corp., 2%4 F.
Supp. 890, 894 (N. D. III. 1971). This court recognizes that
the application of the Ingersoll rule could require a differ-
ent result in this statute of limitations analysis, as the
complaint does not indicate that this cause would be barred
in Yugoslavia. However, the diversity court must hesitate
in extending the law of the forum state in the absence of
some indication from the courts of the forum that the
extension would be desirable, This court is again faced
with the resolution of a novel state issue, and finds that
the extension of Ingersoll to govern the choice of the
statute of limitations is neither the best law nor the more
reasonable rule.
"American Law Institute, Second Restatement of Con-
flict of Laws § 379.
*The court concluded “However, even if we were to a
ply Ingersoll to determine what statute of limitations to
apply, the result would be the same.” 334 F.Supp. at 894.
— l4a—
Without attempting to summarize the entire body of
developing law in this area, the court notes that the few
cases which have applied the “most significant relation-
ship” approach in the choice of the applicable statute of
limitations, have adopted that analysis to achieve the re-
sult of a borrowing statute. Farrier v. May Dept. Store
Co., 357 F.Supp. 190 (D. D. C. 1973); Heavner v. Uniroyal
Co., 63 N. J. 130, 305 A. 2d 412 (1973). These cases use the
Second Restatement approach to preelude the maintenance
of an action in the forum by applying the shorter limita-
tions period of the state where the cause of action arose.
This analysis accomplished the objective of minimizing
forum shopping, which is provided for in other states by
a borrowing statute. Thus states which lack a legislative
directive have attempted to achieve the desired result by
judicial remediation. As Illinois has a borrowing statute,
the persuasiveness of these two cases is minimized. III.
Rev.Stat. ch. 83, 4 21 (1973)].
The court has located only one case which has unequi-
vocally adopted the Second Restatement approach in the
choice of the statute of limitations analysis. In Horton v.
Jessie, 423 F.2d 722 (9th Cir. 1970) the Ninth Cireuit
Court of Appeals concluded summarily that “[u]nder the
California significant contacts approach, we find too little
Missouri contacts and too many in California to apply the
Missouri statute.” A subsequent district court decision
refused to “place dispositive reliance on the brief per
curiam opinion” finding that it would “hardly comport
with this court’s obligation under Erie R. R. Co. v. Tomp-
kins, supra, to transmute Horton into an authoritative
revision of California law.” Klingebiel v. Lockheed Air-
craft Corp., 372 F.Supp. 1086, 1090 (N.D.Col.1971). In
Klingebiel the district court held the California statute
of limitations to control a foreign wrongful death action
governed by German substantive law. The court’s opinion
as to the applicability of the California statute was prem-
ised on the substantive-procedural analysis, specifically
rejecting the Second Restatement approach in the choice
of the controlling statute. In affirming the district court
1
decision, the Ninth Circuit implicitly rejected the broad
language of Horton:
Judge Zirpoli stated that Horton v. Jessie, 9 Cir.,
1970, 423 F. 2d 722, “adopts a ‘significant contacts’ ap-
proach” in applying the California statute of limita-
tions. Horton was not an attempt at an “authoritative
revision of California law.” In Horton we did not
reach the issue of whether or not the substance-proce-
dure dichotomy was still viable in California, There
was no need to do so because it was clear that regard-
less of the approach taken the California statute of
limitation applied. Klingebiel v. Lockheed Aircraft
Corp., 494 F.2d 345, 347 (9th Cir. 1974).
The circuit court’s retreat in Klingebiel from the Second
Restatement approach adopted in Horton cautions this
court in the formulation of Illinois policy.
This court has found no authority to support the plain-
tiff's argument that the extension of the Ingersoll ap-
proach to the selection of the applicable statute of limita-
tions is the preferable rule. As Illinois has enacted a bor-
rowing statute the Second Restatement approach is not
necessary to achieve the borrowing statute result in this
forum. Further the court finds that adopting the Second
Restatement approach would jeopardize the measure of
predictability of outcome guaranteed by the substantive-
emg analysis, while minimizing the impact of the
terests of the forum state. See, Wurfel, Statutes of
Limitations in the Conflict of Laws, 52 N. Carolina L. Rev.
489, 560-67 (1974). In resolving this novel state issue, this
diversity court finds that the Ingersoll most significant
relationship approach should not be extended to include
the choice of applicable statute of limitations. Although
Yugoslavian law may well have governed the substantive
issues of this lawsuit, the court finds that the Illinois stat-
ute of limitations precludes the maintenance of this action
in this forum. Wells v. Simonds Abrasive Co., 345 U.S.
514, 73 S.Ct. 856, 97 L. Fd. 1211 (1953).
— 16a —
{19, 20] The defendant has also argued that two sec-
tions of the Yugoslavian statute of limitations“ would bar
the maintenance of this action in Yuglosvia, and as a
result this claim is barred in an Illinois forum by the
Illinois Borrowing Statute. III. Rev. Stat. ch. 83, § 21
(1973). Assuming, arguendo, that the courts were to take
cognizance of the additional Yugoslavian statutes sub-
mitted by the defendant in support of the motion to dis-
miss but not plead by the plaintiff in the complaint, the
court finds that the defendant’s analysis has placed the
cart before the horse. The Illinois Borrowing Statute
is not a choice of law formulation. It is a rule of exclu-
sion whereby actions brought in an Illinois forum, not
barred by the applicable Illinois statute of limitations,
are denied enforcement if barred by the statute of limi-
tations of the place where the cause of action arose.
Speight v. Miller, 437 F.2d 781 (7th Cir. 1971); Sarro v.
Maupin, 127 Ill. App. 2d 26, 261 N.E. 2d 756 (1970);
Manos v. Trans World Airlines, 295 F. Supp. 1166 (N.
D. III. 1969). As this court has concluded that the IIli-
nois statute of limitations governs this action, and the
Illinois statute bars the maintenance of this cause in this
forum, the Borrowing Statute is inapplicable.
Summarizing, the court finds that the Yugoslavian
civil cause of action plaintiff asserts in this diversity ac-
tion could be recognized and enforced under the public
policy considerations of the state of Illinois. However,
*Section 14 of the Law Concerning Statute of Limita-
tions provides:
„Claims shall be barred after the expiration of a ten
year period, unless specifically provided for by law.“
Section 19 of the Law Concerning Statute of Limita-
tions provides:
„Actions for the recovery of damages shall be barred
after the 11 of three years after the plaintiff
learned of the damage and the person causing it. In
any event such action shall be barred after the ex-
piration of ten years after the day the cause of ac-
tion occurred.
—17a—
the court further finds that this action is not viable as
the applicable Illinois statute of limitations bars the
maintenance of this action in this forum. The plaintiff
has not demonstrated that the five year statute has been
tolled pursuant to Illinois law, and the court finds the
equitable estoppel doctrine advanced by the plaintiff to
be inappropriate. Accordingly, the defendant’s motion to
dismiss is hereby granted, with party to bear its own
costs.
=_—
In THE
UNITED STATES COURT OF APPEALS
For Tue SeventH Circuit
No. 76-1882
HAYIM KALMICH,
Plaintiff-Appellant,
us.
KARL BRUNO,
Defendant-A ppellee.
Appeal from the United States District Court for the
Northern District of Illinois.
No. 74 C 3187—Jorn M. Fraun, Judge.
Arcuep January 11, 1977—Decipep Aprit 25, 1977
Before Farmrcuiwp, Chief Judge, Swycerr and PELL,
Circuit Judges.
PLL, 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.“ 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
The district court’s Memorandum Opinion and Order
of October 14, 1975, is reported at 404 F. Supp. 57. An
unreported Memorandum Opinion of June 25, 1976, de-
nied Kalmich’s motion to alter judgment, and an amend-
ment to that opinion and order, dated July 13, 1976,
granted leave to file a second amended complaint and
dismissed same because it also was time barred. Thus it
is the second amended complaint which is before us.
— 19a —
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.
I.
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 op-
erated 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.“ 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 him-
self to the General Plenipotentiary,? and when an order
The complaint also alleges that the government-in-
exile was at all times while in exile recognized by the
United States as the lawful and sovereign government
of Yugoslavia.
In the statement of the case in his brief, Bruno ad-
verts to his vigorous objections in the district court to
accusations that the defendant’s conduct was motivated
by religious bigotry. The defendant’s motion to strike
these allegations as scandalous was not reached by the
district court in view of its disposition of the case. The
complaint basically alleges that the conquering govern-
ment in which defendant of his own free will participated
seized the plaintiff’s business solely because of his reli-
gious beliefs. Despite some recent belated apologists for
the Nazi regime, we entertain no doubt that substantial
confiscation of businesses did occur as alleged, and that
such allegations constitute a proper part of the case
plaintiff is attempting to pursue. He, of course, if per-
mitted to pursue his case will have to come forward with
proof to support these allegations.
— 0a —
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 substan-
tially understated the value of the business to his supe-
riors to enable him to purchase it from them at a bar-
gain 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 de-
feat 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 lewsuit followed.
Count I of the complaint seeks damage recovery under
statutory provisions of Yugoslavian law which are sum-
marized therein to provide the notice of foreign law is-
sues required by Rule 44.1 Fed.R.Civ.P. One general pro-
vision referred to in the complaint is a broad repeal
of all statutes, ordinances, decrees, and regulations en-
acted 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 stat-
utes, and their interrelationships, are important to the
disposition of this case, and the pertinent paragraphs of
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
—ͤ ͥ —— —
— 2
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
Artice 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], be-
came effect e, 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 total-
ling $1,826,208, plus costs and any post-judgment in-
terest 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 construc-
tive 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.
II.
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 Wricut & MLLEn, Feperat Practice Ax D
Procepure § 2446, at 414-15 (1971).
III.
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 (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 Com-
pany v. Stentor Electric Manufacturing Co., Inc., 313
U.S. 487 (1941); Griffin v. McCoach, 313 U.S. 498 (1941).
We think it clear, and neither party disagrees, that
the Illinois courts would choose to apply the substantive
laws of Yugoslavia to this case. Yugoslavia was the site
of the tort and the injury, and we can think of no argu-
ment that would demonstrate that Illinois has a more
significant relationship with this case than has Yugos-
lavia. See Ingersol 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 general-
ly Hartness v. Aldens, Inc., 301 F. 2d 288 (7th Cir.
1962); Clubb v. Clubb, 402 III. 390, 84 N. E. 2d 366 (1949).
Although only Count I is expressly rooted in Yugos-
lavian 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 Kal-
mich’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 prob-
lem. 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 diver-
sity jurisdiction must respect it. Guaranty Trust Co. v.
York, 326 U.S. 99 (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
— 242 —
are procedural in their nature, Hilberg v. Industrial
Commission, 380 III. 102, 105, 43 N. E. 2d 671 (1942), that
they generally affect only the remedy and not substan-
tive rights, Jackson v. Shuttleworth, 42 III. App. 2d 257,
260, 192 N. E. 2d 217 (1963); Wetzel v. Hart, 41 Ill. App.
2d 371, 374, 190 N. E. 2d 619 (1963), and, thus, that the
limitations statutes of the forum will usually apply, even
though the causes of action to which they are applied
may have arisen in and been governed by the substan-
tive law of another jurisdiction. Id.
An exception, however, is recognized in certain cir-
cumstances where the foreign cause of action is stat-
utorily based. As the Illinois Supreme Court noted in
Smith v. Toman, 368 Ill. 414, 420, 14 N.E. 2d 478 (1938).
[Tjhis court has given consistent recognition to the
principle that where [a] statute creates a right that
did not exist at common law and restricts the time
within which the right may be availed of, or othec-
wise imposes conditions, such statute is not a statute
of limitation [in the normal sense] but the time ele-
ment is an integral part of the enactment. {Emphasis
supplied. }
Accord, Shelton v. Woolsey, 20 Ill. App. 2d 401, 404, 156
N.E. 2d 241 (1959). Neither nith nor Shelton were
choice of law cases; in both e principle was articulated
because helpful in resolving analogous questions of IIli-
nois law. Jackson v. Shuttleworth, supra, 42 Ill. App. 2d
259, states the rule in a choice of law context:
It is true that a number of decisions in the federal
courts have held that the statute of the state where-
in the cause of action arose is the applicable statute,
but an examination of those cases discloses that the
statutes involved were not strictly statutes of limi-
tation, but were statutes creating the cause of action
and limiting the time in which such newly created
right might be asserted. Where the right of action
depends upon statutes and where no such right of
action existed at common law, the time for bringing
action is determined by the lex loci, because the lez
loci establishes the substantive rights of the parties,
and where a limitation is placed upon the assertion
of that right, it has been correctly held to be a mat-
ter of substantive, as distinguished from procedural,
law. Haefer v. Herndon, 22 F. Supp. 523 [S.D. III.
1938]. [Emphasis supplied. ]
To the same effect, see Anderson v. Linton, 178 F. 2d
304, 310 (7th Cir. 1949); O’Neal v. National Cylinde:
Gas Co., 103 F. Supp. 720, 725 (N.D. III. 1952).
Stated in the forms just quoted, the exceptional rule
allowing the application of the statute of limitations of
the locus of the tort does not quite fit this case, for the
Yugoslavian statute creating the right sued upon does
not create its own limitation. Although disagreeing as to
the correctness of its application, the parties do agree
that the district court correctly utilized a somewhat
broader rule, suggested by Mr. Justice Holmes’ opinion
for the Court in Davis v. Mills, 194 U.S. 451, 454 (1904),
in which it was said:
[T]he fact that the limitation is contained in the
same section or the same statute is material only as
bearing on construction. It is merely a ground for
saying that the limitation goes to the right created
and accompanies the obligation everywhere. The
same conclusion would be reached if the limitation
was ina different statute, provided it was directed
to the newly created liability so specifically as to
warrant saying that it qualified the right.
This ‘‘specificity’’ test has previously been used in ap-
plying Illinois law, see O’Neal v. National Cylinder Gas
Co., supra, and we also agree that the question of
whether a foreign statute of limitations goes to the
substance of a foreign right cannot sensibly turn on mat-
ters of pure form. See also 25 LL.P. Limitations § 4, at
180 (1956).
We note a problem not addressed by the parties or the
district court. In O’Neal, supra, the court found the locus
statute of limitations specifically directed to the locus
statutory right, and applied it instead of the shorter Illi-
nois limitation. In Anderson v. Linton and Jackson v.
Shuttleworth, both supra, the courts applied the shorter
Illinois limitation solely because the longer locus limita-
tion was not part and parcel of a locus statutory right.
It could be argued, nonetheless, that a specifically direct-
ed statute of limitations of the tort locus jurisdiction
should be honored only when it is shorter than the
forum’s statute. See Comment, 1962 U.-ILL. L.F 452
(1962); Restatement (SECOND) or Conriict or Laws
§§ 142, 143 (1971); Restatement or Conriict or Laws
§§ 603, 604 (1934); Kenney v. Trinidad Corporation, 349
F. 2d 832, 839 (5th Cir. 1965); Zellmer v. Acme Brewing
Co., 184 F. 2d 941, 943 (9th Cir. 1950).
The controlling premise of such an argument would
be that statutes of limitations are considered ‘‘proce-
dural’’ because they reflect basically procedural concerns
of the forum: discouraging plaintiffs from sleeping on
their rights, and limiting the use of the forum’s courts
to cases in which it is thought that the matters in ques-
tion are fresh enough to allow a fair rendering of jus-
tice. The fact that a foreign jurisdiction has enacted a
statutory right with a long specific limitation would, ac-
cording to this argument, provide no basis for overriding
the forum’s important interests in the integrity of its
judicial system. Where the specific limitation is shorter
than that which the forum provides for, it may be said
that there remains no right for the forum to enforce,
even though the forum would otherwise be willing to
enforce one.
The major premises of the contrary argument would
be these: where the forum’s choice of law rules point to
another jurisdiction, that jurisdiction’s law governs the
substantive rights of the parties; a general statute of
limitations of the locus jurisdiction reflects only the
——— ew ie re el 2
— 27a —
locus’ procedural concerns for its courts, and need not
concern the forum; a specific limitation, on the other
hand, goes to the substance of the foreign right and
should be applied in the forum.
The language emphasized in the quotations supra from
Smith v. Toman and Jackson v. Shuttleworth tends to
support this latter conceptual approach, but it would
be less than candid to say that the analytic problem
posed has been definitely resolved in Tllinois. Because
the approach implicitly adopted by the district court
does find support in Smith, O’Neal, and Jackson, and
because Bruno agrees that the district court utilized the
proper test, we do not find it necessary to take the
matter any further. The statute of limitations in Illinois
is, after all, a waivable personal privilege. Massman v.
Duffy, 330 III. App. 76, 69 N.E. 2d 707 (1946).
We turn to the question of whether the district court
properly applied this ‘specificity’’ test. In support of its
conclusions that the pertinent Yugoslavian statute of
limitations is not specifically enough directed to the
statutory cause of action to have become part of the
substance of the action, the district court advanced three
reasons. First, no specific time limitation is included in
Section 1 (the provision establishing the civil cause of
action). The district court properly placed no substantial
reliance on this factor; if the limitation had been within
Section 1, there would have been no reason to use the
**specificity’’ test which the district court was applying,
for the case would have fallen squarely within the rule
of Jackson v. Shuttleworth, supra. Second, the district
court emphasized that Section 20 (providing that civil
actions grounded on criminal acts may rely on the limita-
tion applicable to criminal prosecution of such acts) was
enacted seven years after Section 1, without any specific
reference thereto, and that Section 20 applies broadly to
all civil actions based on criminal acts, subject only to
the proviso that the conduct complained of in the civil
action could subject the civil suit defendant to a criminal
— Ba —
prosecution. Third, the court noted that Article 134(a)
‘establishing a perpetual statute of limitations for five
specific criminal provisions aimed at genocide and war
crimes, one of which is Article 125, criminalizing the
conduct complained of here) specifically applies only to
criminal prosecutions, and does not in terms extend civil
statutes of limitations.
These statements, while accurate, do not lead us to the
conclusion reached in the district court. In our opinion
Section 20 and Article 134(a), read together, demon-
strate a connection between the Yugoslavian limitation
provision that is adequately specific to warrant honoring
the perpetual limitation in this case.
If adequate specificity exists, it cannot matter that
various of the Yugoslavian statutes involved were en-
acted at different times. Davis v. Mills, supra, 194
U.S. at 456. Likewise, the fact that Section 20 must be
applied through another statute, Article 134(a), does not
weaken Kalmich’s claim of specificity. Hypothetically, if
Section 20 allowed the use of criminal] limitations periods
only in civil actiors based on war crimes under Article
125, it is inconceidable that the reference to Article
134(a) that would be required to see what the criminal
limitation was would flaw the otherwise obviously speci-
fie nature of Section 20.
Of course, as the district court recognized, Section 20,
standing alone, is not nearly this specific. Even if it
were assumed, however, that Section 20 viewed on its
own would fail the specificity test, but see Maki v. George
R. Cooke Co., 124 F. 2d 663, 666 (6th Cir. 1942), cert.
denied, 316 U.S. 686, once Article 134(a) was enacted,
the situation changed. At that time, specific war crimes
became different from ordinary crimes, and specifically
so, because they were not subject to statutes of limita-
tions in criminal prosecution. Also at that time, causes
of action based on the specific crimes because different
from other crime-based causes of action, for the same
reason. Article 134(a)’s treatment of war crimes for
— —
— 29a —
criminal purposes carried into Section 20 by necessary
implication.* That this effect was not made express in
Article 134(a) and results only by reading that statute
with Section 20 does not, as has been seen, make the
effect any less specific. So far as appears, war crimes
referred to in Article 134(a), and only those crimes,
were made perpetually punishable, and causes of action
based on these crimes, and only such causes of action,
were made perpetually actionable. The limitations pro-
visions of Yugoslavia were sufficiently and specifically
part and parcel of the substance of the Yugoslavian
statutory right, and the district court erred in refusing
to apply them.
Nor, as a final matter, do we find any disturbing
aspect contrary to Illinois public policy in the fact that
litigation is being allowed some thirty years after the
events on which the claim for recovery is based. This is
true notwithstanding our earlier reference to a policy
argument of limitation of the use of the forum’s courts
to cases in which it is thought that the matters in ques-
tion are fresh enough to allow a fair rendering of jus-
‘This conclusion is supported by the opinion letter of
Kalmich’s Yugoslavian law expert. The parties are in
controversy over the proper role of this letter in the case.
Kalmich argues that the district court was bound by the
conclusions of this unsworn, un-cross-examined letter,
simply because it was the only expert opinion tendered in
the case. Bruno argues that it should not have been
offered or considered because it was first offered in sup-
port of Kalmich’s motion to alter judgment and it
would not be admissible in evidence. Both arguments are
plainly wrong under Fed. R. Civ. P. 44.1. As material
relevant to the question of law as to foreign law, it was
properly offered even at the late date it was offered, and
properly considered both in the district court and in this
court. As is evident from the text, we take a different
view of the relevance of the conclusion that Article
134(a) implicitly extended the Section 20 limitation pro-
vision than did the district court.
=
tice. Policy also is involved because of the desirability
of discouraging litigants from sleeping on their rights.
There would appear to be no aspect of sleeping on rights
here and as far as the freshness aspect is concerned,
Illinois, as is the case probably in most states, statutorily
recognizes circumstances which would permit access to
the courts of its state notwithstanding a lapse of time
which could be very substantial and which could under
some circumstances even exceed that involved in the case
before us. Thus, the statute of limitations is tolled in
certain circumstances by the absence of the defendant
from the state. Ill. Rev. Stat. 1975, ch. 83, § 19. Similar-
ly the statute is tolled if the person entitled to bring an
action is at the time of the accrual of the cause of action
an infant under 18 years of age, is insane or mentally ill,
or is imprisoned on a criminal charge, the tolling con-
tinuing for two years beyond the removal of the disabil-
ity. Ill. Rev. Stat. 1975, ch. 83, § 22.
Our disposition of this case makes it unnecessary to
consider Kalmich’s argument that Bruno should have
been estopped to assert the statute of limitations. Like-
wise, we see no reason to evaluate Kalmich’s argu-
ment that Count II of the complaint states an equitable
claim not subject to the statute of limitations defense. In
the portion of his brief supporting his constructive trust
theory, the plaintiff concedes that an action may be
maintained in equity only if the remedy at law is inade-
quate. Our holding here, of course, permits plaintiffs to
proceed at law subject, as always, to the requirement of
proof of all material matters.
For the reasons set forth in this opinion, the judgment
of the district court dismissing Kalmich’s complaint is
reversed and remanded for further proceedings consis-
tent herewith.
REVERSED AND REMANDED.
—
— 31a —
Swronnr, Circuit Judge, dissenting. I respectfully dis-
sent. In my opinion the district court correctly analyzed
~ issues in this case and its judgment should be affirm-
The lynchpin of the majority’s reasoning is that Arti-
cle 134(a) constituted a specific limitation on the sub-
stantive rights created by Section 1. I cannot agree. The
statute of limitations for Section 1 remained Section 20,
anod Section 20, as the district court held, ‘‘is a general
statute of limitations, not specifically directed to the
plaintiff’s cause of action .. The majority’s analysis
might be correct if Section 20 tracked Article 134(a)
by stating that the statute of limitations for civil actions
was the same as the statute of limitations for criminal
actions where the conduct complained of constituted one
of the war crimes enumerated in Article 134(a). But
Section 20 does not do so. It is applicable to both war
crimes and ordinary crimes.
In order to determine what the statute of limitations
would be in this case if it were brought in Yugoslavia,
it is necessary to look at both Section 20 and Article
134(a). But this fact does not turn Section 20 into a
statute specifically directed toward qualifying the sub-
stantive rights conferred by Section 1. Section 20 is
applicable in Yugoslavia in a broad range of cases that
have nothing to do with Section 1 or war crimes. For
example, if plaintiff sued defendant in Yugoslavia for
damages based on conduct in 1971 which would con-
stitute arson under Yugoslavian law, Section 20 would
direct a Yugoslavian court to look to the statute of
limitations for the crime of arson. Under the majority’s
reasoning, an Illinois court should also use the Yugosla-
vian statute of limitations for arson because the ex-
istence of a specified statute of limitations for that crime
sets it apart from other crimes. The majority would con-
sequently have the ‘‘specificity’’ exception swallow the
general rule.
— 32a —
Therefore, I cannot say that Section 20 is a specific
limitation on Section 1 simply because Article 134(a)
focuses on war crimes. Since Section 20 is a general
statute of limitations, it is inapplicable in this case.
6
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.