Petition for Writ of Certiorari — Martin-Marietta Corp. v. Maricopa County

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i. INDEX TO APPENDICES

Append: A. Juiguem .. i

Appendix B Decision on Defendants’ Motions to _

Diemiss and/or for Summary Judgment... 2

Appendix C. Opinion of the Cow of Appeals for

the Ninth Circuit 27

Appendix D. Order . wo

Appendix E. Pertinent Statutes Involved 3:1

tl Rl RE RY 3

United States Code, Title 15, Sec. 1$(0)

Act, Sec. 4B) saat

United Stancs Code, Tite 1S, Sec. 160d) sahagee

i ee -_— > 2 5

7 United States Code, Title 28, Sec. 12sec RS

United States Code, Tithe 28, Soc. 1291(b) _......... 4

Separate Petition tor 0 Welt of Cuternst to Ge Usted

aaa Agpeais ter the Niath Circa.

To the Honorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

Petitioners American Pipe and Construction Co. and

American Concrete Pipe Co., defendants below, pray

that a writ of certiorari issue to review the order of the

Umied States of Appeals for the Niath Ciscuit,

entered August 28, 4970, affirming by a divided pane!

the Diswict Court's decision denying petitioners: al-

ternative motions to dismiss and for summary judg ~

-2—

The apimion of the District Court for the District of

Arinona is reported at 904 F. Supp. 279 and annexed

as Appendin A w this Potition. The apinion of the

Court of Appeals has not yet boon officralty reported.

but a copy of that apinion is printed as Appendix |

B to this Petinon.

| Sasiedietien. |

The onder. of the Court af Appeats for she Ninth

Circuit. was entered on August 28, 1970 (Appendix -

C). Petitioners’ Petition for rohcaring was denied by

onder of, the Court of Appeals emered on October

26, 1970 (Appendix D). The jurindiction of this Court

t tavebed under Tite 28 of the United State Code

Section 1254( 1). :

Quaticss Fecaed. ,

i. Whether 4 plaiatlt a a private antioest action

May wee spccessive, non-comtemporce.ces Government

actions to extend indefinitely the suspension of the

. statute of limitations Geyond the fouryear period

of Section 48 of the Clayton Act and beyond the one-

year period of Section S(’b) of the Clayton Act.

2. Whether Scction 5(b) of the Clayton Act will

toll the statute of limitations as to an action fur dam-

_ages by 2 government entity.

3. Whether the pendency of prior Federal Gov-

ernment antitrust proceedings operate under Section

5(b) of the Clayton Act to toll the running of the stat-

ute of limitations for private treble damage actions as

te person who are not pamed a defendants ine sub

Neqwomt piv te trek: damage acbon ber who were i Pid

fo way wrvaived m the prier Government procesdings.

Usined States Oude, Title 15, Section 1S (Chay-

won Act, Section 4); ‘

- United Seam Onde, Vite 25, Section 15(0) -

United See Onde, The 15, Seeten 1570)

(Clayton Act, Section 48).

(Clayton Aci, section $(0)).

"(Gee Agpentin “E” tanenn}. | |

Sutemetef Ge Cun.

‘Gu Agel 15, 198, pela equates, seatinge

Commty filed complaint agningt defendant-petinone:.

aiaging 2 conspiracy in viclation of Sections } and 2 of |

} the Sherman Act “commencing in or about the year

_ 2956" and continuing to af least “vometine ip Ghe,year

1962" [Tr. p 1}. the @ofentoem eomed in

the action wore American and Conswiection Co.

-[Detendents (ind cinemnative motions to \Genin or

for summary jedgment upon the grounds that pile tins

therefore were barred by the four year statute of Emi

tations provided for treble damage actions by Section |

4B of the Claywn Act, 15 USC §15(b). Defendants’

4 —_

— Sa

| motions demonstrated that the running of this Statute

was not tolled under Section 5(b) of the Clayton Act,

1S U.S.C. §16(b) by reason of the pendency of Fed-

eral Government proceedings.

The District Court, in reliance on a number of Fed-

eral Government criminal and civil actions |Tr. Sep-

arate Volume Containing Affidavit of Jesse R‘ O’Mal- _

ley with exhibits], held the prior Government pro-

! ‘ ——— ate >

ment, but certified the questions raised by the mo-

tions under 28 U.S.C §1291(b) for interlocutory

appeal [Tr. p. 279]. The Court of Appeals for the

- Ninth Circuit subsequently granted leave for such inter-

locutory appeal [Tr. p. 284].

Defendant-petitioners American Pipe and Construc-

tion Co. and American Concrete Pipe Co. adopt and

specifically incorporate herein by reference that por-

tion of the Petition of other defendant-petitioners which

is devoted to seeking review of the question of whether

a plaintiff in a private antitrust action may use succes-

sive, non-contemporancous Government actions to ex-

tend indefinitely the suspension of the statute of limi-

tations beyond the four-year period of Section 4B of

the Clayton Act and beyond the one-year period of

Section 5(b) of the Clayton Act. — :

Similarly, defendant-petitioners + tet Cine ant

Construction Co. and American Concrete Pipe Co.

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tion Co. was not a party to Government

Number 64-833 | Vol. Two, R. 245;

tiff's Fifth Cause of Action (Amended Complaint, para.

XIII; Vol. One, R. 104) is based] or Number 64-836

[Vol. Two, R. 306; upon which plaintiff's Second

Cause of Action (Amended Complaint, para. X; Vol.

One, R. 100) is based}.

was not a party to any of the Federal Government civil

actions.

In its per curiam opinion, the Circuit Court stated:

“Nor do we pass upon the contention, made for

the first time in a reply brief in this court, that a

partial summary judgment should have been

granted because American Pipe and Construc-

tion Co. was not named as a defendant in

two

of the five civil actions commenced.by the gov-

the

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not be reversed on grounds not raised below.”

[ Decision, pp. 1-2].

tion S(b) of the Clayton Act to toll the statute of liesi-

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who are named as defendants in a subsequent private

toate dee

Wayne M. Prriucx, Eso.

Attorneys for Petitioners American

Pipe & Construction Co. and

American, Concrete Pipe Co.

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APPENDIX “A.”

United States Court of Appeals for the Ninth Cir-

out. 1

Maricopa County, Plaintiff-Appellee v. Americar —

Pps .——*

lants. No. 24737.

APPEAL from the United States District Court for |

the District of Arizona.

THIS CAUSE came on to be heard on the Tran-

script of the Record from the United States District

Court for the District of Arizona and was duly sub-

mitted.

ON CONSIDERATION WHEREOF, It is now here

ccduah and eftetan ty Gio Cpu; tna Ge tudgeant

of the esid District Court im this Cause be, and eneby

is affirmed.

Filed and entered August 28, 1970.

PENCE, District Judge.

tion on April 19, 1969, and its amended complaint on

May 22, 1969 is therefore important.

CHRONOLOGY OF EVENTS

On March 10, 1964, the United States Grand Jury

at Los Angeles returned five indictments against de- .

fendants American Pipe and Construction Co. (Ameri-

_ can), Umited Concrete Pipe Corporation (United), Kai-

ser Stéel Corporation (Kaiser), United States Steel Cor-

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US.C. § 4 socking to restrain continuing violations by

the defendants of Section | of the Sherman Act.

Sevac two years tater. on December 8, 1967, with

the consent of cach defendant except American, a “Par-

tial Final Judgment” was centered in cach case, i.c., by

December 8, 1967, all save American compromised

"“

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feet ltt F iit ff

ftunity ql fy yh tik

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ute, therefore the tolling period, under § 5(b), within

which the plaintiff was privileged to file its suit, termi-

mated on. June 18, 1965, i... onc year. after the ter-

mination of the criminal actions; and (2) since the plain-

mated some time in 1962, ergo, the last datc upon

which plaintiff could have filed, to have any possible

cause of action within the four-year statutory period of

limitations under Clayton 4B (15 U.S.C. § 15b), would

be not later than the end of 1966."

amended its complaint to add an injunctive count which

would normally invoke the tolling provisions of §5

(b). neither can the possible tolling aspects raised by

the government's amended complaints be related back

under the F.R.Civ. P. I5(¢) to June 24, 1964, when

‘ 1967, the tolling provisions of § 5(b)-in any event,

ended on December 8, 1968, as to them. Martin-

Marietta and O'Malley urge (5) that since they were

~ SAlth 23 of its First

Roy a 3

conspiracy and the acts in thereof, the

complaint does nor allege concealment from the plain-

. date upon which plaintiff could have brought the

Nes

srrcromcet scion, cv criminal in the “pipe” cans,

tad any ling dest agen cay const: of exten aw

alleged agsinst them, snd since the plaintiff alleges

_ the conspiracy terminated some time in 1962, the last

| eat action was not later than the end of 1966.

Marictia ‘also maintains (6) that (a) the FTC action

had no tolling effect: as to it, inasmuch as the Clayton

7 actin before the FTC was not based in whole or

im parton any matter complained of in piaintiff’s com-

plaint and § Sib) did not apply; and (b) even if it

did, any possible tolling terminated one year after the

eatry of the PTC order on March 12, 1963. O’Malicy

‘also urges'(7) thet not only was it never an alleged

_ O-canspirator or defendant in any government action

but that also it had siever been named a defendant in

; amy end-user complaint filed in Arizona or anywhere

‘chee, therefore the tolling provisions of § 5(b) had no

application to it.

U. S. Steel, Keiser and USI also maintain (8) that

inasmuch as Maricopa County is a political subdivision

of the State of Arizona, and the State, by its Attor-

ney General, entered into a Covenant Not To Suc

with them on September 20, 1968, the plaintiff, as such

a political is bound by that covenant and

estopped to bring | Present suit.

All parties maintain (9) that the doctrine of laches

SS SEE See SE -

the complaint.

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APPLICABLE LAW

Of course, the primary problems before this court

are (a) whether or not the tolling provision of § 5(b)

remained in full force and effect past June 19, 1965,

and if so, (b) whether it so continued as to all con-

spirators named in the government suit except Ameri-

can, after December 8, 1968.

It is settled that if a claim is brought after the run-

ning of the statute of limitations and such defect is

apparent on the face of the complaint, it is tanta-

mount to a failure to state a cause of action and such

“defense” may be raised by a motion to dismiss, but

since, as here, there are usually several tolling theories

involved, necessitating that the motions be accompanied

by reference to matters outside the pleadings, the usual

practice is to include a motion for summary judgment

together with that for dismissal.‘ These defendants’ mo-

tions, then, are properly before the court.

Section 4B of the Clayton Act (15 U.S.C. § 15b)

recites that suits under §§ 4 or 4A of that Act are

“forever barred unless commenced within four years

after the cause of action accrued.” A»cause of action

under the Sherman Act accrues when the antitrust laws

are violated, and there is a causally related injury to

business or property flowing from such violation.’ A

conspiracy of the nature here alleged is a continuing

one and is in affect renewed during each day of its

continuance.* When the cause of action is based on

4Suckow Borax Mines Consol., Inc. v. Borax Consolidated,

185 F. 2d 196 (9 Cir. 1950).

SFlintkote Co. v. Lysfjord, 246 F.2d 368 (9 Cir. 1957).

*United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182,

84 L. Ed. 181 (1939); United States v. Socony-Vacuum Oil Co.,

310 U.S. 150, 60 S.Ct. 811, 84 L.Ed, 1129 (1940).

time in 1962 with the overt acts occurring prior to the

end of 1962, and the complaint here was filed on April

15, 1969, on the face of the complaint therefore more

fore barred by reason of the running of the four-year

statute of limitations fixed by § 4B unless the statute

in this case has been suspended or tolled. °

Section 5(b) of the Clayton Act (15 U.S.C. § 16

(b)),° suspends the running of the statute of limita-

government proceeding “during the pendency thereof

and for one year thereafter.” With certainty, therefore,

the government criminal indictments, supra, put into

effect the § 5(b) suspension of the statute as to the

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acts causing injury to it within the four years prior to -

the return of the criminal-indictments on March 10,

1964. The government's criminal actions were termi-

nated on Junc 19, 1964, when judgments of convic-

tion were entered therein and the one-year extension

of the suspension thereupon started running.

The government's False Claims and Clayton 4A

actions, as filed June 23, 1964, are expressly excluded

from the tolling provisions of § 5(b). With equal cer-

tainty therefore, until the government amended its com-

plaints on October 28, 1964, to add a claim for in-

junctive relief under 15 U.S.C. § 4,. the pendency of

those first government civil actions had no effect upon

the ticking away of the one-year suspension period

following June 19, 1964.

DEFENDANTS’ THEORIES |, 2, 3

Defendants maintain that when the suspension pro-

visions of § 5(b) were started up by the return of the

indictments on March 10, 1964, no government civil

or criminal action filed thereafter would have any ef-

fect upon the period of suspension established thereby,

i.e., there could be no tacking of tolling periods simply

because there might thereafter develop an overlap in

government civil-criminal anti-trust proceedings. De-

fendants’ position flows primarily from dicta in Dickin-

son, Inc. v. Kansas City Star Company, 173 F.Supp.

423 (W.D. Missouri 1959). Dickinson involved. a pri-

vate antitrust action filed after the government had

“simultaneously commenced a criminal and a civil ac-

tion against defendants for violation of Section 2 of the

Sherman Act.” (At 423.) The government criminal ac-

tion terminated before the government's civil action

ended, and the court rejected the defendants’ argument

curt ig an venti) on) he cur aul

stated that the result would be otherwise if the two

government actions had been successively filed rather

than contemporaneously brought:

“The rule is, that ‘successive disabilities may not

be tacked to one another so as to bring a party

within the exceptions to the statute of limitations.’

54 C.3.S. Limitations of Actions, p. 254, § 219.”

173 F.Supp. at.425. .

Dickinson (at 424), relying on Sun Theatre Corp. v.

RKO Radio Pictures, 213 F.2d 284, 290 (7 Cir.

1954), held that the evidentiary benefits of the first

paragraph of Clayton § 5 (15-U.S.C. § 16), and the

tolling provisions of the second paragraph are “compli-

mentary”, and must be construed together. Thus, the

court’s conclusatory dicta was not illogical—in 1959.

The Dickinson dicta was referred to in the excellent

decision of Judge Larson in State of Michigan v. Mor-

ton Salt Company, 259 F.Supp. 35, 51 (D.Mina.

1966):

“It may be that in some instances tolling the stat-

ute during successive actions would result in treble

damage claims of such. vintage that it would be

patently unreasonable to assume that Congress

meant to allow ‘tacking’ under § 5(b). * * *”

But Judge Larson thereafter watered down this pos-

tulation by continuing:

But here, the civil complaint was filed within

two weeks of the indictment. Although not simul-

f =

tancous!y commenced, the two actions were pend-

ing concurrently. | think this situation falls with-

in permissible limits so that the suspension could

continue until the conclusion of the civil suit.”

Short of perfectly “concurfent” filings, this court

fails to perceive any difference, in their tolling or tack-

ing effect, between successive government antitrust

‘proceedings, one of which may have been filed onc

minute, one hour, one day, one week, or any period of

time-after another has fillen filed.”

The “complimentary”. and togetherness construction

given Clayton §§ 5(a) and 5(b), by Sun Theatre and

Dickinson was discarded and overruled in Minnesota

Mining & Manufacturing Co. v. New Jersey Wood

Finishing Co., 381 U.S. 311, 317, 319, 85 S.Ct. 1473,

14 L.Ed.2d 405 (1965) (hereinafter cited as 3M),

in holding that § 5(b) was completely severable from

§ 5(a), the court adding “|T]extual distinctions as

well as the policy basis of § 5(b) indicate that it was

to serve a more comprehensive function in the congres-

sional scheme of things.” (At 319, 85 S.Ct. at 1477.)

Both 3M and Leh v. General Petroleum Corpora-

tion, 382 U.S. 54, 86 S.Ct. 203, 15 L.Ed.2d 134

(1965), state and restate the principle that the scope

of § 5(b). is not to be restrictively interpreted.” Al-

though the legal concept of tacking successive periods

of suspensions followed in. Union Carbide & Carbon

Corp. v. Nisley, 300 F.2d 561 (10 Cir. 1961), was

not an issue in Leh, Nisley was approvingly cited there-

"There's no such condition as being only a little bit preg-

nant.

“3M, , 381 U.S, at-319, 322, 85 S. Ct. 1473; Leh,

supra, 382 Ss. at 56, 59, 86 S. Ct: 203.

e

—ij— :

‘in. 3M and Leh inferentially, but with certainty, over-

' fuled the legal logic and with it the conclusions of Sun

Theatre and Dickinson, that absent “simultancous”

filing of government:criminal and civil antitrust actions

the “first in first out” rule on tolling would foreclose

any possible overlapping or tacking of tolling emanat-

ing from a second and later filed government action.

As this court sees it, Nisley, 3M and Leh are dis-

positive of this problem (and most of the others now |

before the court). Nisley permitted “tacking” to enable

two plaintiffs to bring an action in 1958 for over acts

occurring in 1938, violating the antitrust laws, by first

giving full effect to the 1942 war-time tolling statutes,

56 Stat. 71, as amended 59 Stat. 306, 15 U.S.C.

§ 16, under which all statutes of limitations applicable

to antitrust violations were suspended until] June 30,

1946. Then, in June of 1946, the government filed

an antitrust indictment against the defendants which

was dismissed upon the filing by the government, in

September 1948, of an antitrust criminal information

against the same defendants which was not terminated

until June 2, 1957. Plaintiffs filed their action within

one year thereafter, relying upon § 5 of the Clayton

Act. The Court of Appeals in Nisley analyzed in depth

the rationale and scope intended by Congress to be

given § 5(b) when it enacted the same (see 300 F.2d

at 568-569), and while holding, on the authority of

Sun Theatre, the two subsections to be complimentary

and should therefore be construed together, decided

that they were not “necessarily co-extensive in their

frame of reference.”"’ 300 F.2d at 569.

"1On that rationale, the court found that a

ment antitrust suit was pending (for the tolling purposes of § 5S-

(This footnote is continued on the next page)

Re RRC

entitan

The Court in 3M approved the reasoning of Nisicy

and stated:

“[T lhe textual distinctions as well as the policy

basis of § 5(b) indicate that it was to serve a more

comprehensive function in the congressional scheme

of things. The Government's initial action may

aid the private litigant in a number of other ways.

The pleadings, transcripts of testimony, exhibits

and documents are available to him in most in-

stances. * * * Moreover, difficult questions of

law may be tested and definitively resolved be-

fore the private litigant enters the fray. The great-

er resources and expertise of the Commission and

its staff render the private suitor a tremendous

benvfit aside from any value he may derive from

a judgment or decree. Indeed so useful is this

service that government proceedings are recog-

nized as a major source of evidence for private

parties.” 381 U.S. at 319, 85 S.Ct. at 1478.

The Court in Leh, referring to Nisley and 3M,

reaffirmed the rationale ‘of both, restating that it was

Congress’ “ ‘belief that private antitrust litigation is

one of the surest weapons for effective enforcement of

the antitrust laws.’ 381 U.S., at 318, 85 S.Ct, at

1477”, and that the overriding purpose of the Clay-

ton Act’s tolling provision is to assist private litigants

in utilizing any benefits they might cull from any gov-

ernment antitrust actions.

3M and Leh uneguivocally indicate that the lan-

guage of §.5(b) must be given its broadest application

(b)) from the time in 1946 when the criminal indictment was

eaten SS Saeiere Of Be ome on Ge lsematen te 1907.

Nisley, supra, 300 F.2d at 570.

“Leh, 382 U.S. at 59, Ors tS

,

.

suspension of the four-year

t

§

cited in support of the rule, involved

vides otherwise.” (Emphasis added.) 12 P.2d at 894.

Not only is the matter now before the court not con-

cerned with several disabilities of the same person, but

also the congressional act, suspending the statute of

_ limitations, specifically provides for the suspension dur-

_ =

ing any period that any government action is pending

This court recognizes the general rule that “statutes

of limitations ate statutes of repose and are favored

by the courts”,"” and that the underlying purpose “is to

force a litigant to get moving, * * * to pursue every —

avenue of relief promptly, while the evidence is fresh

and the witnesses are available”, and that it was with

. this in mind, as well as for other reasons, that Con-

gress fixed the statute of limitations in cases

at four years. Having so fixed the statute /of limita-

tions, Congress could have stopped r there—but

it didn’t. Congress, with deliberation and specificity,

disturbed that “repose” and overrode that purpose by

enacting. § 5(b), to make manifest that in encouraging |

the enforcement of the antitrust laws by private litiga-

tion, tolling of the statute was more important than.

By § 5(b) Congress has said that so long as “any

government proceedings” (emphasis added) were pend-

and for one year-.thercafter, antitrust claims were

stale and could be enforced. In balancing the equi-

plaintiff and defendant in repose and tolling,

deliberately weighted the law in favor of the

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the burden of suit, Congress made antitrust

exception to the general rule and instead

ty

739 (1960).

“Dedmon v. Falls Products Incorporated, 299 F.2d 173 (5

2

3

“Hamrick v. intienapetie Humane rg ,Inc., 273 F.2d 7,.

(7 Cir, 1959), cert, den. 362 U.S, 919, Ct. 671, 4 L.Ed.

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ties. The use of the term “tacking” in the context of

§ 5(b) is statutorily inapplicable if the congressional .

policy #0 definitively stated in 3M and Leh fs to be

given the broad use and effect desired by Congress.

Here, this court can be and is only concerned with the

tail the free flowing river of sus created by and

welling from the filing of any government antitrust pro- _

ceedings. Private antitrust litigation may be filed at any

‘time prior to one. year after the termination of any

Excepting, of course, 15 U.S.C. § 1Sa actions.

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f

lap, as is here the case, then since the statutory tolling

period has never become moribund nor buried, the

tolling provisions continue to be viable until the end of

the one-year extension following the termination of the

last government action to end. :

One caveat, however, is illustrated by the present

tions hiid ended, i:é., June 19, 1965, the government

had filed its same False Claims and § 4A actions (as

was here done), and after June 19, 1965, the govern-

ment had then amended its civil actions to add an anti-

trust injunctive count, this court would have no hesi-

tancy in stating that the insertion of the injunctive anti-

trust count by amendment would not revive any claims

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but also continued its tolling effect until one year after

final judgment in the case involving American.

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fendants U. S. Steel, Kaiser, United, Smith-Scott and

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DEFENDANTS THEORIES 5 and 7

Martin-Marietta and O'Malley, however, were not

defendants in the government suit nor were they named

as co-conspirators. A comparison of the allegations in

plaintiff's complaint, here, with the government com-

plaints, makes it manifest, however, that the alleged

conspiratorial acts of these two defendants were en-

twined with and fundamentally the same as those of

the defendants named in the government actions; with

certainty, plaintiff's claims against them are “based in

whole or in part” on the violations alleged in the gov-

ernment actions. 15 U.S.C. § 16(b). Prior to Leh, in

the Ninth Circuit, this similarity probably would not

have been sufficient to toll the statute as to them.

Steiner v. 20th Century-Fox Film Corp., 232 F.2d 190

(9 Cir. 1956), demanded that under § 5(b) a “ ‘greater

similarity is needed than that the same conspiracies

are alleged. The same means must be used to achieve

the same objectives of the same conspiracies by the

same defendants.’ 232 F.2d, at 196." The Supreme

Court, in Leh, overruled Steiner. The Court of Appeals,

in Leh,” in following Steiner, had concluded that the

running of the statute of limitaions was not suspended

because “there were not only different overt acts charged,

but different conspiracies, occurring at different times,

between different parties.” The Supreme Court in

Leh, however, held that the “private plaintiff is not

required to allege that the same means were used to

achieve the same objectives of the same conspiracies by

the same defendants (emphasis added). Rather, effect

must be given to the broad terms of the statute itself —

18382 U.S. at 57, 86 S.Ct. at 206.

19330 F.2d 288 (9 Cir. 1964).

207d. at 301.

> 4

en

‘based in whole or in part on any matter complained

of'” (italicized in original), and continued: “(The

courts must not allow a legitimate concern that invo-

cation of § 5(b) be made in good faith to lead them

‘into a niggardly construction of the statutory language

** * ai

If more were needed, the Supreme Court, in Leh, re-

ferred back to 3M and found that the difference in par-

ties did not prevent a tolling of limitations as to 3M,

since the private plaintiff's Sherman Act claims set up

substantially the same claims as were presented by the

government in the Clayton Act proceedings before the

FTC. The Court concluded:

“Just as in Minnesota Mining the differences

between Sherman Act and Clayton Act proceed-

ings were held not to require the conclusion that

the private action under the Sherman Act was not

based in part on any matter complained of in

the Government’s § 7 suit, so here we cannot

conclude that a private claimant may invoke § 5(b)

only if the conspiracy of which he complains

has the same breadth and scope in time and par-

ticipants as the conspiracy described in the govern-

ment action on which he relies. Here there is

substantial identity of parties, six of the seven

defendants in this case being defendants in the

_government suit as well. In suits of this kind, the

absence of complete identity of defendants may

be explained on several grounds unrelated to the

question of whether the private claimant's suit is

based on matters of which the Government com-

plained. In the interim between the filing of the

21382 U.S. at 59, 86 S.Ct. at 207.

—

two actions it may have become apparent that a

party named as a defendant by the Government

was in fact not a party to the antitrust violation

alleged. Or the private plaintiff may prefer to

limit his suit to the defendants named by the

Government whose activities contributed most di-

rectly to the injury of which he complains. On

the other hand, some of the conspirators whose

activities injured the private claimant may have

been too low in the conspiracy to be selected as

named defendants or co-conspirators in the Gov-

ernment's necessarily broader net.””

So here, the two defendants, Martin-Marietta and

O'Malley, though never mentioned in the government ac-

tions, nevertheless are also caught by the gills with the

other alleged co-conspirators who became entangled

in the government's net.”

DEFENDANTS’ THEORY 8

The covenant not to sue executed by the State of

Arizona in favor of U. S. Steel, Kaiser and USI pur-

ported to bind the State of Arizona, its departments,

agencies and entities, to refrain from suing the three

corporations for any antitrust “pipe” claims it might

have against them and any overt-acts of the three de-

fendants prior to June 20, 1968. It is noted that the

State actually intervened as a party plaintiff in the ac-

tion brought by the cities of Phoenix, Mesa, Tempe,

etc., and the towns of Goodyear and Showlow.™ Thus

the State certainly purported to be an entity separate

from the cities and towns within it. Under Arizona Re-

221d. at 63-64, 86 S.Ct. at 209.

23See also Morton Salt, supra, 259 F. Supp. at 53-55.

#U.S. Steel Exhibit G, p. 406.

-

vised Statutes § 11-202 each county in Arizona is a body

politic and corporate, and by A.R.S. § 11-532 a coun-

ty’s attorney is given the authority to sue on behalf of

that county. A.R.S. § 41-192 gives the State Attorney

General of Arizona 2 power to coordinate the legal

services required of other departments of the State or

other State agencies. This last power apparently gives

to the Attorney General the power to bring actions on

behalf of the counties only when the county specifically

requests the Attorney General to so represent it.

Plaintiff's Exhibit 2 shows that the State Attorney

General at no time represented Maricopa County in

the Phoenix, et al., case, nor was he ever requested to

so represent Maricopa County. The State of Arizona did

not intervene in the City of Phoenix case as a party in

a class. The State of Arizona’s covenant not to sue had

no relationship to nor effect on the present action

' brought by Maricopa County.”

DEFENDANTS’ THEORY 9

All defendants maintain that in any event plain-

tiff's cause of action is barred by laches. It was laches

which apparently concerned J +? Larson in Morton

Salt when he said:

“It may be that in some instances tolling the stat-

ute during successive actions would result in treble

**Defendants U. S. Steel, Kaiser and Martin-Marietta have

raised the issue that because this court set a cutoff date for in-

Eee ni tee ee ae aes

Hawaii, Washi gon and California, and such actions

were subsequen y oy Chetefore the failure of plaintiff herein

to have intervened therein before that cutoff date, in some man-

ner forecloses it from By g By present —

class actions involved in the 5 cull cular of this court, on

the face of each a affected gy limited the parties

of the class to the ic agencies in each of the above several

states. The plaintiff here was never officially Epon of the

pendency of those class actions, nor did it —

— g

PEN FORO CR. ORES REN SEE Re I nN SRR RInUmemmS eee

LI LATE PET AOS EIEN: NIT 7

a

damage claims of such vintage that it would be

patently unreasonable to assume that Congress

meant to allow ‘tacking’ under § 5(b).” 259 F.

Supp. at 51.

‘Assuming arguendo that laches might be a defense to

an action at law,” nevertheless, Royal Air Properties,

Inc. v. Smith, 312 F.2d 210, 214 (9 Cir. 1962), on

laches in general, and Nisley as laches particularly ap-

plies to antitrust actions, hold that federally created

statutes of limitation are not to be curtailed or cut

short. The congressional intent that there must be pre-

served to the private litigant every possible benefit he

can glean from any antitrust laws is the underlying and

ever present factor in our decision-making process.”

Moreover, the equitable doctrine of laches is ad-

dressed to the discretion of the trial court to be deter-

mined by the particular circumstances of the case then

before the court, the crucial consideration being wheth-

er there has been such a lapse of time as would do an

injustice to the defendants if plaintiff's action were per-

mitted to stand.”* While the claims of the plaintiff in-

volved purchases of pipe made by it prior to the end

of 1962, it is not now urged by any of the defendants

that they have no records of sales dating that far back. —

To the contrary, this court would take judicial notice

{. Schultz v. Manufacturers & Traders Trust Co., 40 F.

nea ons (W.D.N.Y, 1941).

21C7, also United States v. Manufacturers Hanover Trust, 229

F.Supp. 544, 546 (S.D.N.Y. 1964),

or gg ransport Co. Vv. United States, 297 F.

5,7 (N. oe ead

f~

gn

- =o

of the fact that the records of sales transactions of

several defendants here have been produced, dating’ as

far back as 1954, in the actions of the almost 400_.

plaintiffs filed in the various districts of the Ninth Cir-

cuit between 1964 and 1969, upon all of which cases

this judge has sat. The circumstances of the alleged

conspiracies, the documents and partics imvolved, have

been developed in'depth, and documents and deposi-

tions of the alleged conspiring parties are still- readily

available to each and every defendant. The lapse of

time, in this case, in no wise affects the defendants’

ability to respond to the plaintiff's complaint.

The defense of laches is here unavailable to the de-

fendants.

DEFENDANTS’ THEORY 6

This court's disposition of the statute of limitations

problems as the same affect Martin-Marietta, makes it

unnecessary for this court to pass upon plaintiff's al-

legations that the FTC proceedings, based on a viola-

tion of Clayton 7, filed January.27, 1961, followed

by a consent order of that Commission on March 12,

1963, suspends the running of the statute of limita-

tions against Martin-Marietta in this case, because the

prder of divestiture gave Martin-Marietta 24 months to

dispose of certain plants and enjoined certain acts by

Martin-Marietta for a period of 10 years.” As indi-

cated by this court during oral argument, however, the

a 3M and Leh, supra; Sun Theatre, supra, 213 F.2d

at ,

axtfiaen

FTC action is inapplicable. Not only were the alleged

monopolistic acts of Martin-Marictta in the FTC's

Clayton 7 complaint not even in part concerned with

any of the defendants’ acts in violation of Sherman |

and 2 as here alleged by plaintiff, but also the FTC

order of divestiture and injunction, on March 12, 1963,

terminated that proceeding for the purpose of § 5(b),

even though a few implementary housekeeping chores

were continued thereafter.

Defendants’ motions to dismiss or for summary judg-

ment are denied.

OU

a

APPENDIX “C.” re

Opinion of the Court of Appeals for the Ninth Circuit.

United States Court of Appeals, for the Ninth Cir-

cuit. < aa

Maricopa County, -Plaintiff-Appellee, v. American

Pipe and Construction Co., et al., Defendants-Appel-

. lants, No. 24,737, :

[ August 28, 1970). | oe

Appeal from the United States District Court for

the District of Arizona, . — :

Before: HAMLEY and BROWNING, Circuit Judges,

and THOMPSON, District Judge.*

PER CURIAM: | |

We affirm the order of the district court denying ap-

pellants’ motion for summary judgment. We affirm on

the grounds stated in the district court's opinion, ex.

cept that we do not pass upon the soundness of the

district court's dictum that a government antitrust pro-

ceeding filed more than one year subsequent to the

termination of a prior government antitrust proceed-

ing could not toll the running of the statute of limi-

tations on private treble damage actions. Nor do we

pass upon the contention, made for the first time in a

reply brief in this court, that a partial summary judg-

ment should have been granted because American Pipe

and Construction Company was‘not named as a de-

fendant in two of the five civil actions commenced by

the government. We see no reason to depart from the

general rule that a district court judgment should not

*Honorable Bruce R. Thompson, United States District Judge

for the District of Nevada,, sitting by designation.

o -

- =

“be reversed on grounds not raised below. Our affirm-

ance is without prejudice, however, two the filing in the

en a eee Oe GE Clee

mary judgment raising this new issue. ]

HAMLEY, J., (Dissenting in part):

I concur in the majority opinion except indofar as

it affirms ‘the denial of the motion of Martin ta

Corporation and Six Points Lumber & Supply Co.,

dba O’Malliey-Gannaway Concrete Pipe Co.

The motion for dismissal of the action was made by

these two. defendants on the ground that plaintiff's

claims against them are barred by the four year statute

of ‘limitations. provided by section 4B of the Clayton.

Act, 15 U.S.C. § 15b, The district court rejected this

ground for dismissal on the theory that, under the facts

of this case, this statute -of limitations was tolled by —

the provisions of section 5(b) of the Clayton Act, 15

U.S.C, § 16(b), in view of certain prior federal ‘gov:

ernment civil and criminal procecdings.

Neither of the above-named defendants were ever |

named. or complained of as defendants or co-conspira-

tors in the. prior civil and criminal actions brought by

the federal government. In my view, the pendency of

federal government civil and criminal actions cannot

toll the running of the statute of limitations, as to per-

sons or companies not named or complained of in such

government actions.

The tolling statute, section 5(b) referred to above,

limits tolling to private actions “based in whole or in

part” on any matter complained of in the government

criminal or civil proceeding. Insofar as these two de-

_- fendants are concerned, the instant case is not, in my

opinion, based in whole or in part on any matter ‘com-

plained of in the prior government actions.

I recognize that the decision in State of New Jersey

v. Morton Salt Company, 387 F.2d 94 (3d Cir. 1967)

_ supports the view of the majority. It is no doubt true,

_ a8 held in Morton Salt, that the tolling provision was

* . enacted for the benefit of private parties who were in-

jured. But I am not persuaded that Congress intended

that provision to override, as to persons and companies

‘dn ‘ng. way involved in the prior government antitrust “

suits, the salutary —_ behind section 4B, as a ates :

of repose.

‘ -

a J

cemenenemeeniomeenendl

&

—30—

- APPENDIX “D.”

United States Court of Appeals for the Ninth Cir-

cuit, | ; Sis

Maricopa County, Plaintiff-Appellee .v. American

Pipe and- Construction Co.,-et al., Defendants-Appel-

lants, No, 24,737.

Filed Oct. 26, 1970.

Before: HAMLEY and BROWNING, Circuit —

and THOMPSON, * District Judge.

The panel as constituted in the above case has voted

_ to deny the petitions for rehearing and to reject the

suggestions for rehearing in banc. |

. The full court has been advised of the suggestions °

for in banc rehearing, and no judge of the court has

requested a vote on the suggestions for rehearing in

banc. Fed. R. App. P.35(b).

The petitions for rehearing are denied and the sug-

gestions for rehearing in banc are rejected. :

Dated: October 23, 1970.

*Honorable Bruce R. Thompson, United States District Court

for the District of Nevada, sitting by designation.

meme

APPENDIX “E.”

1, United States Code, Title 15, Section 15 (Clay-

ton Act of October 15, 1914, c. 323, § 4, 38 Stat.

131); | -

|

an agent, without respect to the amount

versy, and shall recover threefold the damages by

him sustained, and the cost of suit, including a

reasonable attorney's fee.” |

2, United States Code, Tithe 15, Section 15(a)

(Clayton Act of October 15, 1914, c. 323, § 4A, as

added July 7, 1955, c. 283, § 1, 69 Stat. 282):

__ “Whenever the United States is hereafter in-

jured in its business or property by reason of any-

thing forbidden in the antitrust laws it may sue

therefor in the United States district court for the

district in which the defendant resides or is found

or has an agent, without respect to the amount in

controversy, and shall recover actual damages by

it sustained and the cost of suit.”

3. United States Code, Title 15, Section 15(b)

(Clayton Act of October 15, 1914, c, 323, § 4B, as

added July 7, 1955, c, 283, § 1, 69 Stat. $83):

“Any action to enforce any cause of action un-

der sections 15 or 15a of this title shall be forever

barred unless commenced within four years after

the cause of action accrued, No cause of action

barred under existing Jaw on the effective date of

this section and sections 15a and 16 of this title

shall be revived by said sections.”

a

—4,—United States Code, Title 15, Section 16(b)

“(Clayton Act of October 15, 1914, ¢. 323, § 5(b), 38

Stat. 731, as amended July 7, 1955, c. 283, § 2(b),

69 Stat. 283):

“Whenever any civil or criminal procecding is

instituted by the United States to prevent, restrain,

or punish violations of any of the antitrust laws,

but not including an action under section 15a of

this title, the running of the statute of limitations

in respect of every private right of action arising

under said laws and based in whole or in part on

any matter complained of in said proceeding shall

be suspended during the pendency thereof and for

one year thereafter: Provided, however, That when-

ever the running of the statute of limitations in

respect of a cause of action arising*Onder section:

15 of this title is suspended hereunder, any ac-

tion to enforce such cause of action shall be for-

ever barred unless commenced either within the

period of suspension or within four years after the

cause of action accrued.”

“a