and accomplishment." Ajax, at *3. In Ajax, the court's dismissal of the Sherman Act claims rested on the fact that, "while alleged co-conspirators need not be named, they must be identified with a degree of particularity....Plaintiff failed completely to state any facts which would demonstrate the existence of a conspiracy, its object, or accomplishment. No co-conspirators were identified with any specificity." Id. The court found no co-conspirators because the concerted action alleged was between officers and employees of the same firm, which "does not qualify as conspiracy under § 1 of the Sherman Act." Id. Rolite has identified the alleged co-conspirators specifically. Thus, Ajax is distinguishable from the present case.
In Black & Yates, the Third Circuit went on to say that "the plaintiffs have pleaded none of these facts. Neither the date of the alleged conspiracy nor its attendant circumstances are set forth. Nor is it averred who make [sic] the statements, where, when, or to whom." Black & Yates, at 231-32. However, it is not clear from the opinion in that case what the facts were, i.e. what was actually pled. Furthermore, all of this language was dicta in Black & Yates : the case was decided on other grounds, and the court preceded the above statements by explicitly saying, "the views just expressed make it unnecessary for us to elaborate upon plaintiff's failure to state a cause of action under the Sherman or Clayton Acts." Id., at 231. In any event, I believe Rolite has satisfied the Black & Yates standard: it has alleged the conspiracy (to monopolize or restrain trade), its "object" (to do so by interfering with the contract/attempt to contract between Rolite and client(s)), and "accomplishment" (by warning/threatening client(s) and Rolite).
It is true, as Defendants contend, that Rolite does not allege any conspiratorial statement made between Defendants, or when meetings took place to discuss the alleged conspiracy. However, these are, by their very nature, the kinds of actions that Rolite could not know of, and therefore are what the Supreme Court was speaking of when it said that "summary procedures should be used sparingly in complex antitrust litigation where...the proof is largely in the hands of the alleged conspirators...." Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 473, 82 S. Ct. 486, 491, 7 L. Ed. 2d 458 (1962). The pleadings clearly imply that such statements or discussions took place.
Rolite has alleged sufficient facts to meet its very low pleading burden, and, conversely, Defendants have failed to satisfy the extremely high burden they face in moving for dismissal at the pleading stage. For this reason, I will deny Defendants motion to dismiss Rolite's Section 1 and Section 2 conspiracy claims.
IV. MOTION TO DISMISS COUNT V: STATUTE OF LIMITATIONS
Finally, Defendants move to dismiss Rolite's state law claims, set forth in Count V of the Amended Complaint, to the extent that they are based upon statements made in July, 1993 and November, 1994, contending that they are time-barred. Rolite claims in Count V that Defendants' alleged conduct constitutes unfair competition, commercial disparagement, defamation, and tortious interference with prospective contractual relations and business advantage.
The claims in question here are state law claims. Therefore, state law will determine the applicable statute of limitations. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Guaranty Trust Co. of New York v. New York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945). The statute of limitations issue raises a choice-of-laws question. As a federal district court adjudicating state law claims, I must apply the choice-of-law rules of Pennsylvania, the forum state. Klaxon v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021-22, 85 L. Ed. 1477 (1941); System Operations, Inc. v. Scientific Games Development Corp., 555 F.2d 1131, 1136 (3d Cir. 1977). The operative choice-of-law rule in Pennsylvania is found in Pennsylvania's "borrowing statute," 42 Pa.C.S.A. § 5521. This statute provides that "the period of limitation applicable to a claim accruing outside this Commonwealth shall be either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim." 42 Pa.C.S.A. § 5521(b).
A. The July 1993 Statements
The state law claims are based in part upon statements allegedly made by representatives of Defendants at a bid opening in Camden, New Jersey on July 28, 1993. Both Pennsylvania and New Jersey provide a one-year statute of limitations for claims of defamation. 42 Pa.C.S.A. § 5523(1); N.J.S.A. 2A:14-3. Therefore, under the borrowing statute, a defamation action based upon the July 1993 statements is governed by a one-year statute of limitations, as both New Jersey and Pennsylvania provide. Because the original Complaint was not filed until September 27, 1994, more than a year after the claim accrued, I will dismiss the defamation claim as time barred insofar as it is based upon these statements.
Defendants contend that the remaining state law claims for commercial disparagement, unfair competition, and tortious interference with prospective contractual relations and business advantage, should be dismissed as well. Defendants claim that the "gravamen" of Count V is defamation, "and the inter-relatedness of all of the claims in Count V is manifested by Rolite's inclusion of them all in a single Count." Defendants' Motion to Dismiss, at 36. They then claim that, "where, as here, the gravamen of an action is one for defamation, Pennsylvania court have repeatedly held that plaintiffs cannot avoid operation of the one-year statute of limitations applicable to defamation claims by the simple expedient of re-labeling the claim as a different tort, such as tortious interference." Defendants' Motion to Dismiss, at 36.
Defendants cite the case of Evans v. Philadelphia Newspapers, Inc., 411 Pa. Super. 244, 601 A.2d 330 (1991), in support of this. In that case, the plaintiff brought an action against a newspaper and its reporters for tortious interference with a contract, defamation, and conspiracy. Defendants argued that, since the tortious interference claim was duplicative of the defamation claim, it was barred by the one-year statute of limitations applicable to defamation claims. The court stated the issue before it as "whether a tortious interference claim, which is based upon identical allegations set forth in an accompanying defamation claim, should be considered duplicative and, as such, be barred by the one year statute of limitations applicable to defamation claims." Id. at 247-8, 601 A.2d at 332. (It also noted that, "in its research, [it] had been unable to find any authority in [Pennsylvania] which addresses this precise issue." Id.)
The court stated that the tort of contractual interference is recognized in Pennsylvania and that the action may be a separate and distinct action from that of libel and slander (i.e. defamation). Id. at 248-49, 601 A.2d at 333. It went on to say, however:
In a situation such as this, however, where the underlying wrong which the complaint alleges is defamation by publication of a libelous report, and the claim of injury set out in each count springs from the act of publication, the Appellants should not be able to circumvent the statute of limitations by merely terming the claim tortious interference when in essence it is one of defamation, subject to a one year limitation of action. In such a situation, we will look to the gravamen of the action, not to the label applied to it by plaintiffs.
Id., at 249, 601 A.2d at 333. Furthermore, the Superior Court found persuasive the "thorough analysis and reasoning" of the trial court, from which it quoted:
The basic difference between a cause of action for interference with a contractual relationship and a cause of action for defamation resulting in the loss of such a relationship is that the former action can be based on a variety of torts including defamation. Therefore, where the gravamen of an action for interference with a contractual relationship is based on the commission of a tort the statute of limitations for that tort must govern.