Roberts v. Magnetic Metals Co.

SLOVITER, Circuit Judge,

concurring.

I concur in the decision that New Jersey’s six-year statute of limitations applicable to actions for common law fraud governs the claim in this case. I reach that decision by a route which diverges in principle from that followed by Judge Gibbons because I am not persuaded that the selection must begin with the inquiry “whether [the] state court would entertain an action” or that the decision must, be made on the basis of “accommodat[ing] a state policy of repose.”

There has been an unfortunate dearth of legal commentary analyzing the basis upon which a federal court considering a federal statutory claim should determine the selection of a state statute of limitations from several which may be applicable. Since the issue may implicate more than the particular statute at issue here, it may be worthwhile to begin such an inquiry with the hope that others will be stimulated into shedding more light on the issue.

At the outset, it is necessary to rationalize why a state statute of limitations should ever be applied to a federal statutory claim, particularly when the federal claim involved is one that must be brought exclusively in federal court. The seeming incongruity of such a course is that it leads to a lack of uniformity as to an important aspect of enforcement which stands in sharp contrast to the uniformity in substantive law which probably was one of the bases for enactment of the federal statute. Nonetheless, the instructions we have received from the Supreme Court are unambiguous: in the absence of a federal limitations period, resort must be had to the applicable state statute of limitations. Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743 (1946); Campbell v. Haverhill, 155 U.S. 610, 619-20, 15 S.Ct. 217, 39 L.Ed. 280 (1895); McCluny v. Silliman, 28 U.S. (3 Pet.) 270, 277, 7 L.Ed. 676 (1830).

There is a strong likelihood that the recourse to state statutes of limitations has resulted from historical habit. In diversity cases, the federal courts uniformly followed state statutes of limitations. One might posit that the original basis for federal deferral to state statute of limitations was the Process Acts where Congress directed that in trials at common law the federal courts should follow the “forms of writs and executions . . . and modes of process” of the forum state. See, e. g., Act of Sept. 29, 1789, c. 21, § 2, 1 Stat. 93. However, local statutes of limitations were not easily classifiable as “forms of writs and executions and modes of process”, and it appears that it was the Rules of Decision Act, which was applied not only in substantive matters but in procedural matters as well, to which the courts turned in applying state statutes of limitations. See Hill, State Procedural Law in Federal Nondiversity Litigation, 69 Harv.L.Rev. 66, 77 (1955). As the Court noted in Bauserman v. Blunt, 147 U.S. 647, 652, 13 S.Ct. 466, 468-469, 37 L.Ed. 316 (1893):

By a provision inserted in the first Judiciary Act of the United States, and continued in force ever since, Congress has enacted that “the laws of the several states, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as *457rules of decision in trials at common law in the courts of the United States, in cases where they apply.” Act [of] September 24, 1789, c. 20, § 34 (1 Stat. 92; Rev.Stat. § 721). No laws of the several States have been more steadfastly or more often recognized by this court, from the beginning, as rules of decision in the courts of the United States, than statutes of limitations of actions, real and personal, as enacted by the legislature of a State, and as construed by its highest court.

And of course, in Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), the Court, while declining to characterize a statute of limitations as procedural or substantive, held that the state statute must be applied in a suit in equity by a federal court sitting in diversity.

Although the series of cases in which application of aspects of state statute of limitations in federal courts reached its most notable crescendo were all cases in which the federal courts were sitting in diversity, Guaranty Trust Co. v. York, supra; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949); Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), it has been observed that the procedural applications of the Rules of Decision Act, at least before Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), seem to have been made without regard to the source of federal jurisdiction. Hill, supra at 87-88.

It is important to note that even while federal courts paid deference to state statute of limitations, it was clear that there were circumstances under which they would not be applied. Thus, in Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946), traditional principles of equity were held to supercede the forum’s statute of limitations. In Campbell v. Haverhill, supra, the Court cautioned against mechanical application of the local statutes, particularly when they might discriminate against federally created causes of action or be applied “in manifest hostility to Federal rights or jurisdiction . . . .” 155 U.S. at 615, 15 S.Ct. at 219. In Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914,97 L.Ed. 1319 (1953), it was federal practice permitting an amendment to relate back rather than the state practice which was held applicable in an admiralty proceeding.

The ascendancy of federal procedure as a result of the promulgation of the Federal Rules of Civil Procedure and the primacy given to federal policies even where no Federal Rule applies, Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), make it appropriate to reexamine the automatic application of state statutes of limitations to federally created claims. Habit and custom are not in thelnselves satisfactory bases for slavish adherence to a former practice if there is no other basis for support. Cf. Atkins v. Schmutz Manufacturing Co., 435 F.2d 527 (4th Cir. 1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1526, 28 L.Ed.2d 867 (1971) (federal tolling rule applied in diversity action), discussed in 71 Colum.L.Rev. 865 (1971); but cf. Walker v. Armco Steel Corp., 592 F.2d 1133 (10th Cir. 1979), cert. granted, - U.S. , 100 S.Ct. 43, 62 L.Ed.2d 29, (1979) (state’s rule on tolling not displaced by Fed.R.Civ.P. 3).

There may well be, however, another more persuasive reason why resort to state statutes of limitation is appropriate in federal claims. That is simply that they offer an available and discernible resource to which to turn in the absence of any other; or, like the mythical mountain, “because they are there.” Where no limitation is included “both state and federal courts have applied the state law of limitations, in the belief that Congress would not have intended the anomaly of a class of perpetual rights.” Developments in the Law— Statutes of Limitations, 63 Harv.L.Rev. 1177, 1266 (1950).

If the federal courts did not “adopt” or “borrow” the state statute of limitations, one is tempted to question how the number of years would be selected if it were conceded, as is reasonable, that perpetual rights were not intended? Ever since the Limita*458tion Act of 1623 which marked the beginning of the modern law of limitations on personal actions in the common law, see Developments, id. at 1178, legislatures have grappled with conflicting policies and considerations in fixing the various limitations periods for different types of actions. It is a task uniquely suited to a legislative body which, although it may sometimes make an arbitrary decision, is ultimately answerable to its constituency. The nature of statutes of limitations was discussed in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945) where the Court said:

[Statutes of limitations] are by definition arbitrary . . . They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a “fundamental” right or what used to be called a “natural” right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.

The practice of the equity courts, which were not bound by any statute, to measure laches by the comparable statute of limitations also supports the view that ordinarily selection of limitations periods is essentially a legislative function. See discussion of equitable practice in Russell v. Todd, 309 U.S. 280, 287-291, 60 S.Ct. 527, 84 L.Ed. 754 (1940).

Professor Mishkin, in his provocative article, The Variousness of “Federal Law": Competence and Discretion in the Choice of National and State Rules for Decision, 105 U.Pa.L.Rev. 797 (1957), has written: “[T]here may be situations where state law is chosen only because of special difficulty in the judicial framing of a definite federal rule on a specific issue in an area otherwise totally national.” Id. at 803-04. The example he cites is “in establishing a limitations period for federal causes of action as to which Congress has provided no guidance.” Id. at 804, n. 27.

The Court itself gave support to this rationale for resorting to state law in UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), when, in holding that state statutes of limitations should be used under § 301 of the Taft-Hartley Act, it rejected the claim that it “devise a uniform time limitation to close the statutory gap left by Congress” with the comment that “the teaching of our cases does not require so bald a form of judicial innovation.” Id. at 701, 86 S.Ct. at 1111. It further stated:

Thus, although a uniform limitations provision for § 301 suits might well constitute a desirable statutory addition, there is no justification for the drastic sort of judicial legislation that is urged upon us. (emphasis added). Id. at 702-703, 86 S.Ct. at 1111-1112.

The above appears to demonstrate that the resort by federal courts in federal claim cases to state statutes of limitations has been motivated primarily because it is expedient and not because policy considerations compel deference to the state. In the absence of countervailing considerations, the state statute can be applied. Its utilization and application must conform with the federal policy reflected in the substantive right being enforced as well as substantial federal policies which inhere in the operation of an independent federal judicial system.

It follows that once the federal court determines that there is more than one state statute of limitations which it can borrow, the selection of the one most appropriate to use must be made by considerations which comport with federal policy. The state policy of repose is relevant only if, and to the extent to which, it is consistent with the underlying federal claim. As the Court observed in UAW v. Hoosier Cardinal Corp., supra: “[T]he characterization of [the Indiana statute] for the purpose of selecting the appropriate state limitations provision is ultimately a question of federal law . . . But there is no reason to reject the characterization that state law *459would impose unless that characterization is unreasonable or otherwise inconsistent with national labor policy.” Id. at 706, 86 S.Ct. at 1113. It is important to recognize, therefore, that it is federal law and federal policy which is paramount, and if the federal policy leads to the state law, it is done as an application of a federal choice of law. See Consolidated Express, Inc. v. New York Shipping Ass’n, 602 F.2d 494, 507 (3d Cir. 1979) (Gibbons, J.) (“[I]n a § 303(b) case the specific state statute of limitations that is adopted, and the manner of its adoption, are to be determined by the policies that underlie the federal regulatory statute.”)

It may be convenient to overlook the irony of attempting to ascertain Congressional intent as to choice of statute of limitations in a claim based on sections of the Securities Exchange Act (§§ 10(b) and 14(a)) which do not themselves expressly provide a right of action. We are nevertheless guided by definitive determinations that under both sections the implication of a private right of action is necessary to effectuate the Congressional purpose. See Kardon v. National Gypsum Co., 69 F.Supp. 512 (E.D.Pa.1946); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964).

Looking to that Congressional intent in connection with the matter at issue, the salient feature is that Congress, in enacting the federal securities statutes, intended that they be applied in addition to, and not in place of, applicable state statutes. Section 28 of the Securities and Exchange Act explicitly provides that federal securities law should not be interpreted as wholesale displacement of state securities regulation:

The rights and remedies provided by this chapter shall be in addition to any and all other rights and remedies that may exist at law or in equity; but no person permitted to maintain a suit for damages under the provisions of this chapter shall recover, through satisfaction of judgment in one or more actions, a total amount in excess of his actual damages on account of the act complained of. Nothing in this chapter shall affect the jurisdiction of the securities commission (or any agency or officer performing like functions) of any State over any security or any person insofar as it does not conflict with the provisions of this chapter or the rules and regulations thereunder.

15 U.S.C. § 78bb.

The Supreme Court has recently commented on this intention in Leroy v. Great Western United Corp., - U.S. -, 99 S.Ct. 2710, 2716 n. 13, 61 L.Ed.2d 464 (1979), where it stated:

Thomas Corcoran, a principal draftsman of the 1934 Act, indicated to Congress that the purpose of § 28 was to leave the States with as much leeway to regulate securities transactions as the Supremacy Clause would allow them in the absence of such a provision. Senate Committee on Banking and Currency, Stock Exchange Practices: Hearings on S.Res. 84 (72d Cong.) and S.Res. 56 and S.Res. 97 (73d Cong.), p. 15, National Securities Exchange Act of 1934, 73d Cong., 1st Sess., 6577 (1934). In particular, the provision was designed to save state blue sky laws from pre-emption. .

Since Congress has recognized the value of the concurrent operation of the federal statute and nonconflicting state securities actions, it would in ordinary circumstances lead us to the application of the statute of limitations provisions in the state securities act, i. e. the two-year limitation period in the New Jersey blue sky law. That would seemingly supply the provision most consonant with and complementary to that of the federal scheme.

However, that conclusion does not necessarily follow in this case which is a suit brought by a seller claiming damages as a result of violation of the federal act. As Judge Gibbons has pointed out, the New Jersey securities statute provides no protection to sellers or tenderers of securities. If this had resulted from a conscious state policy to exclude buyers from recovering on such claims, then the line of reasoning developed here might impel the federal court to acknowledge that state policy when choosing a governing statute of limitations. *460It is evident, however, that the exclusion of the sellers from the provisions giving a right of action under the New Jersey statute was not made to deny sellers any relief.

The civil liability provision in the New Jersey statute tracks that of the Uniform Securities Act upon which it is based.1 The history surrounding the drafting of the Uniform Securities Act establishes that the failure to provide for liability against buyers was made with the intent of continuing in force all of the common law remedies against fraudulent buyers. Thus, the Draftsmen’s Commentary to Section 410(a) of the Uniform Securities Act (the section imposing civil liability) states:

Concerning fraudulent buyers, see the last paragraph of the draftsmen’s commentary under Section 101.

L. Loss, Commentary on the Uniform Securities Act 147 (1976).

The commentary to which the draftsmen refer appears following Section 101 of the Uniform Securities Act:

At the same time, there is no clear need to create any civil liability against buyers as distinct from sellers. Although the lower federal courts have uniformly implied a civil cause of action against fraudulent buyers under the SEC rule, the federal courts when applying federal law do not have at their disposal all of the common-law and equitable remedies of deceit and rescission which are available to the state courts without benefit of statute. In the area of civil liability, moreover, it seems not only unnecessary but unwise to disturb the general jurisprudence which has been developing with reference, for example, to the obligation of corporate insiders to make affirmative disclosure when purchasing from existing stockholders. On the other hand, the general law is not adequate to deal with flagrant cases of fraud by buyers on a criminal level, and there can, of course, be no public action for an injunction against such practices without specific statutory authority.

L. Loss, id. at 8.

Thus, the Uniform Securities Act which provides civil liability on behalf of buyers against fraudulent sellers intended to supplement the body of common law permitting sellers to sue fraudulent buyers. For such actions, New Jersey provides the six-year statute of limitations referred to in Judge Gibbons’ opinion. Therefore it follows that the six-year statute of limitations provision should also be applicable in an action brought by a seller claiming damages for alleged fraudulent practices of a buyer in violation of sections 10(b) and 14(a) of the Securities Exchange Act.

To recapitulate, I have reached this conclusion by applying a federal policy in the securities field to operate concurrently with state remedies for similar violations; the state remedies provide statutory relief for buyers and common law relief for sellers. There is no occasion here to consider the appropriate statute of limitations to be applied were this a suit by a buyer.

. Compare N.J.S.A. Section 49:3-71(a) in the text of Judge Gibbons’ opinion with the following:

Section 410. [Civil Liabilities.]
[Violation of Registration or Fraud Provisions.]
(a) Any person who
(1) offers or sells a security in violation of section 201(a), 301, or 405(b), or of any rule or order under section 403 which requires the affirmative approval of sales literature before it is used, or of any condition imposed under section 304(d), 305(g), or 305(h), or
(2) offers or sells a security by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading (the buyer not knowing of the untruth or omission), and who does not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the untruth or omission,

is liable to the person buying the security from him Uniform Securities Act, Section 410(a).