UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
September 16, 1957
FRANK I. GORDON AND MARION V. GORDON
LOEW'S INCORPORATED, ET AL. JOHN C. GORDON, HELEN GORDON AND JOSEPH GORDON V. LOEW'S INCORPORATED, ET AL.
Before MARIS, STALEY and HASTIE, Circuit Judges.
Opinion of the Court
By MARIS, Circuit Judge:
The plaintiffs in these two cases have filed a petition for rehearing. So far as they seek a reargument of the question of the applicability to a federal antitrust suit of the two years limitation imposed by section 2A:14-10 of the Revised Statutes of New Jersey, the petition presents nothing which has not heretofore been fully presented to and considered by the court. We, therefore, merely state that we adhere to the conclusion expressed in the opinion heretofore filed that this statute is applicable to bar the suit of Frank and Marion Gordon.
For the first time in this court the plaintiffs John, Helen and Joseph Gordon now state in the petition for rehearing that the six years limitation of section 2A:14-1 of the Revised Statutes of New Jersey is not applicable to bar their suit because a Government antitrust suit, entitled United States v. Paramount Pictures, Inc. et al., was pending against the present defendants in the District Court for the Southern District of New York during a portion of the period of six years before they brought their suit. It is true, as these plaintiffs state, that under section 5 of the Clayton Act, 15 U.S.C.A. § 16, the running of the New Jersey statute of limitations would have been suspended during the pendency of this Government antitrust suit as to every private right of action on any matter complained of in said suit. It is unnecessary for us to consider whether such a suspension actually occurred, however, since it is conceded that the Government antitrust suit in question had terminated as against all the defendants in both the present suits more than two years before either of these suits was begun.
Since, as we have held, the two years statute of limitations of New Jersey was applicable to bar the suit brought by Frank and Marion Gordon, that statute was also applicable to bar the similar suit brought by John, Helen and Joseph Gordon even if the six years statute was suspended by the pendency of the Government suit. Accordingly the question of the applicability of the six years statute to the suit of John, Helen and Joseph Gordon is wholly academic.
The petition for rehearing will be denied.
Upon consideration of the petition for rehearing filed by the appellants and the appellees' brief in opposition thereto it is ordered:
(1) That the opinion filed in these cases on July 31, 1957 is amended by striking out the last sentence of the opinion, prior to the direction for the entry of judgment, reading as follows: "It is worth nothing also that if the federal statute of limitations of four years which now applies to antitrust cases had been applicable to the cases before us it would have barred both of them."; and
(2) That the petition for rehearing is denied.
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