Judge Greene's opinions do not indicate that the August 28, 1982, judgment lacked the finality or definition that would make it useful to future litigants. His language is clear: on August 24, 1982, he approved the stipulation of dismissal and "ORDERED that Civil Action No. 74-1698 be and it is hereby dismissed." 1982-2 Trade Cas. (CCH) para. 64,981. Judge Greene limited his review of the plan of reorganization to ensuring that it complied with the consent decree. See 569 F. Supp. at 992-93, 1120 n.286; 552 F. Supp. at 219 n.366, 225-226.
In Russ Togs, supra, 426 F.2d 850, the district court in the government action had entered a decree after trial, United States v. Grinnell Corp., 236 F. Supp. 244 (D.R.I. 1964), but on appeal the Supreme Court found the relief granted inadequate and remanded the case for hearings on relief. United States v. Grinnell Corp., 384 U.S. 563, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966). In the subsequent private action, the Second Circuit held that the government action ceased to pend when the time to appeal the district court's final decree after remand expired. The Court noted that important issues had been left open for determination on remand. 426 F.2d at 856. The remand proceeding and the appeal from it could generate evidence and legal rulings useful to prospective plaintiffs. Id.
In the circumstances of this case, Russ Togs does not support Keystone's position. Russ Togs ' rationale does not apply when the parties have entered a consent decree. Under the narrow scope of appellate review of a consent decree, private parties can rely safely on its provisions. Yoder, supra, 537 F.2d at 1363; Shimazaki, supra, 647 F. Supp. 10, slip op. at 9-10. Further, the Russ Togs court refused to extend pendency to include "the period subsequent to a final decree during which the court exercises continuing jurisdiction for purposes of modification and enforcement under the usual retention of jurisdiction clause." 426 F.2d at 856 n.8; see Yoder, supra, 537 F.2d at 1363. Judge Greene's review and approval of the plan of reorganization was just such an exercise of continuing jurisdiction.
Fixing termination of pendency at the date Judge Greene approved the consent decree and ordered the government case dismissed promotes certainty and repose. In contrast, Keystone's argument that pendency continued until Judge Greene finalized relief in his approval of the plan of reorganization admits of no limitation, for some aspects of the remedy invariably will require further elaboration. See Sun Theatre, supra, 213 F.2d at 293. A court retains power indefinitely to modify and enforce its equitable decrees. United States v. Swift & Co., 286 U.S. 106, 114-115, 76 L. Ed. 999, 52 S. Ct. 460 (1932). Antitrust decrees may generate enforcement or clarification proceedings decades later. E.g., United States v. Armour & Co., 402 U.S. 673, 29 L. Ed. 2d 256, 91 S. Ct. 1752 (1971) (action to clarify and enforce consent decree entered in 1920). In fact, as recently as January of this year, Judge Greene adjudicated motions to clarify his decree. United States v. Western Electric Co., 627 F. Supp. 1090 (D.D.C. 1986).
III. New Overt Acts
Keystone's assertion that new overt acts causing it antitrust injury occurred within the limitations period requires us first to examine the standards for summary judgment, particularly in an antitrust case.
Summary judgment is proper when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 54 U.S.L.W. 4755, 4757, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When motive and intent are not at issue, summary judgment "is particularly apropos in antitrust cases." Mid-South Grizzlies v. National Football League, 550 F. Supp. 558, 564 (E.D.Pa. 1982), aff'd, 720 F.2d 772 (3d Cir. 1983), cert. denied, 467 U.S. 1215, 81 L. Ed. 2d 364, 104 S. Ct. 2657 (1984); see Lupia v. Stella D'Oro Biscuit Co., Inc., 586 F.2d 1163, 1166 (7th Cir. 1978), cert. denied, 440 U.S. 982, 60 L. Ed. 2d 242, 99 S. Ct. 1791 (1979). Once the movant has met its burden of demonstrating the absence of a genuine issue of material fact, the non-movant must come forward with evidentiary materials to designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 54 U.S.L.W. 4775, 4777, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed.R.Civ.P. 56(e)). We hold that Keystone has failed to raise a genuine issue as to whether it suffered new antitrust injury within the limitations period.
An antitrust cause of action "accrues and the statute begins to run when a defendant commits an act that injures a plaintiff's business." Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971). A new cause of action accrues each time defendants commit a new act that injures the plaintiff. Id. However, "where all the damages complained of necessarily result from a pre-limitations act by defendant, no new cause of action accrues for any subsequent act committed by defendant within the limitations period because those acts do not injure plaintiff." Imperial Point Colonnades Condominium, Inc. v. Mangurian, 549 F.2d 1029, 1035 (5th Cir. 1977), cert. denied, 434 U.S. 859, 98 S. Ct. 185, 54 L. Ed. 2d 132 (1978); see also The Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 117, 126-127 (5th Cir. 1975), cert. denied, 423 U.S. 1054, 46 L. Ed. 2d 643, 96 S. Ct. 784 (1976). The Third Circuit adopted the Fifth Circuit's position in Harold Friedman, Inc. v. Thorofare Markets Inc., 587 F.2d 127, 139-140 & nn.44-45 (1978).
Applying these rules to the facts before us, we find that defendants have shown, beyond dispute, that their pre-limitations acts immediately and permanently destroyed Keystone's telecommunications scrap recycling business so that defendants' post-1980 acts did not inflict any new injury on Keystone.
Keystone had an agreement with Nassau that Keystone would process only Nassau scrap. (Kann Dep. 243, 302; Beck Dep. 89). During its relationship with Nassau, Keystone never bid on any other telecommunications scrap contracts. (Kann Dep. 187, 198; Beck Dep. 89). Keystone had geared its operations toward processing a large, steady flow of scrap from Nassau. (Kann Dep. 189). Once that flow stopped, Keystone could not sustain its business by bringing in small consignments of scrap from several suppliers. (Id.) Consequently, Keystone converted its Greensboro, Georgia, and Mars, Pennsylvania, plants to aluminum and zinc smelting (Kann Dep. 138-143) and closed its Newark plant. Keystone never bid on any of the scrap made available by the BOCs. (Kann Dep. 140-41; Kann Dep. 187-91, 198; Beck Dep. 101; Answer of Plaintiff Keystone Resources to Defendants' Motion to Dismiss, pp. 8-10, and attached Reese affidavit). Nassau clearly had put Keystone out of the telecommunications scrap business by the end of 1979.
Keystone argues that the BOCs offered scrap for competitive bidding after 1978. However, Nassau continued to obtain a large quantity of scrap from the BOCs on no-bid contracts at a low price, enabling it to outbid possible competitors on the open contracts. (Answer of Plaintiff Keystone Resources to Defendants' Motion to Dismiss, p. 9; Buerger Affidavit in Opposition to Motion to Dismiss). Keystone asserts that it wished to bid on these post-1980 contracts, but defendants' continuing conspiracy, not any pre-1980 acts, prevented Keystone from bidding. (Answer to defendants' motion to dismiss, p. 9).
These conclusory allegations miss the point of defendants' motion for summary judgment. Keystone's affidavits indicate only that defendants' vertical integration continued after 1980. At issue, however, is not the continuation of defendants' allegedly illegal conspiracy, but causation. Keystone has not produced any specific facts to controvert defendants' showing that Keystone suffered final injury before 1980. Keystone does not point to any "specific act or word" of defendants precluding it from obtaining contracts. See The Poster Exchange, supra, 517 F.2d at 128-129, on appeal after remand, 542 F.2d 255, 257 (1976) (granting defendants' summary judgment motion after remand because plaintiff failed to produce affidavits showing a specific act denying access to market), cert. denied, 431 U.S. 904, 97 S. Ct. 1697, 52 L. Ed. 2d 388 (1977); Woodbridge Plastics, Inc. v. Borden, Inc., 473 F. Supp. 218, 221-222 (S.D.N.Y.) (where no new requests or refusals to deal within the limitations period, no new causes of action accrued), aff'd, 614 F.2d 1293 (2d Cir. 1979).
For the reasons set forth above, we hold that the government litigation against AT&T ceased to pend on August 24, 1982, more than one year before Keystone commenced this action. We further hold that Keystone did not suffer any new antitrust injury at the hands of the defendants within the limitations period. Therefore, Keystone did not bring this action before the four year statute of limitations or the one year suspension toll expired, and defendants' motion for summary judgment will be granted.
Defendants have not moved for summary judgment on Keystone's claim, in paragraph seventeen of its amended complaint, for nonpayment of a debt. Diversity jurisdiction exists for that claim, and we pretermit decision on it.
An appropriate order will follow.
ORDER OF COURT
AND NOW this 9th day of October, 1986, for the reasons stated in the memorandum opinion filed this date in the above-captioned case, IT IS ORDERED that the defendants' motion for summary judgment be, and the same hereby is, granted.
IT IS FURTHER ORDERED that the parties meet and submit to the court within ten (10) days of this order a joint status report on all outstanding issues. If the parties cannot agree on a joint report, each party must submit a status report within ten (10) days of this order.
GUSTAVE DIAMOND, United States District Judge