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12/19/77 Walko Corporation, v. Burger Chef Systems

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


December 19, 1977

WALKO CORPORATION, APPELLANT

v.

BURGER CHEF SYSTEMS, INC., AN INDIANA CORPORATION, ET AL. 1977.CDC.277 DATE FILED: DECEMBER 19, 1977

*fn1 WALKO CORP

v.

BURGER CHEF SYSS., INC., CIV. NO. 74-674 (ORDERS OF DEC. 13, 1974).

*FN2 THE BACKGROUND OF THIS DISPUTE IS ELUCIDATED IN OUR EARLIER OPINION, WALKO CORP

v.

BURGER CHEF SYSS., INC., 180 U.S.APP.D.C. 306, 307-308, 554 F.2D 1165, 1166-1167 (1977).

Mr. Justice Tom Clark,* Retired Associate Justice of the Supreme Court of the United States, and Robinson and MacKinnon, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Supplemental Opinion After Certification to the Court of Appeals of Maryland (D.C. Civil 74-674).

APPELLATE PANEL:

PER CURIAM DECISION

The District Court dismissed appellant's diversity action as time-barred because initiated after the three-year period set by the applicable Maryland statute of limitations.*fn1 Before commencing suit, appellants had attempted unsuccessfully to intervene in an earlier action to which the appellees were parties.*fn2 If the running of the statute was tolled for the period during which that motion was pending, the present action would have been timely, but otherwise not.

When the case was first before us, we held that under the Erie doctrine *fn3 the question of tolling in these circumstances was to be determined by Maryland law; *fn4 and because we were uncertain as to the state-law principles governing, we certified the question to the Maryland Court of Appeals *fn5 pursuant to a Maryland statute affording us that opportunity. *fn6 The Court of Appeals has now responded with a holding that "the statute of limitations was not suspended during the pendency of the motion to intervene." *fn7 The court based this conclusion in large part on policy considerations and the legislative judgment reflected in the statute of limitations, *fn8 thus confirming the wisdom of our decision to leave the question of tolling to the forum more able to identify and evaluate the critical factors. *fn9

The ruling of the Maryland Court of Appeals disposes of the only issue remaining on this appeal after our earlier opinion. Now that we are authoritatively and fully informed on the Maryland law applicable to the situation at bar, the judgment appealed from must be

Affirmed.

CASE RESOLUTION

Affirmed.

APPELLATE PANEL: FOOTNOTES

* Sitting by designation pursuant to 28 U.S.C. ยง 294(d). Mr. Justice Clark participated in the initial opinion in this case but died thereafter and did not participate in this supplemental opinion.


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