District Court for the District of Columbia for alleged monopolization in violation of section 2 of the Sherman Act. The trial of this case commenced before Judge Harold Greene on January 15, 1981. However, before the completion of the Government's case-in-chief, the parties entered into a stipulation for voluntary dismissal pursuant to Rule 41(a)(1)(ii), FRCP. On January 8, 1982, the parties presented this stipulation to the office of the Clerk of Court for filing pursuant to Rule 5(e) of the FRCP at which time Judge Greene directed that the stipulation be deemed "lodged, not filed." See United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 144-45 & n.52 (D.D.C. 1982). Judge Greene later permitted the stipulation to be "filed" on August 24, 1982, after a consent decree was entered terminating the suit. However, throughout the course of the 1974 case, defendants insisted that the action terminated on January 8, 1982, when the parties filed the stipulation of dismissal. They press this same argument in support of their motion to dismiss.
It must first be pointed out that a motion to dismiss under Rule 12 of the FRCP is merely a decision on pleadings, and for that reason, it is granted sparingly and with caution. This is especially true in antitrust cases. See Hospital Bldg. Co. v. Trustee of Rex Hospital, 511 F.2d 678, 680 (4th Cir. 1975), rev'd on other grounds, 425 U.S. 738, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976). Moreover, in ruling on defendants' motion to dismiss on statute of limitations grounds, the allegations of the complaint are assumed to be true. See Barnosky Oils, Inc. v. Union Oil Co. of California, 665 F.2d 74, 77 (6th Cir. 1981). See M&T Chemicals, Inc. v. International Business Machines Corp., 403 F. Supp. 1145, 1146 (S.D.N.Y. 1975), aff'd, 542 F.2d 1165 (2d Cir. 1976), cert. denied 429 U.S. 1030, 50 L. Ed. 2d 637, 97 S. Ct. 656 (1976).
The gravamen of defendants' argument is that the stipulation of voluntary dismissal presented to the clerk's office by the parties to the 1974 case was "filed" in accordance with Rule 5(e) thereby dismissing the suit on January 8, 1982, notwithstanding Judge Greene's directive that the stipulation be lodged rather than filed. Indeed, defendants maintain that Judge Greene's directive did not and could not prevent the dismissal of the 1974 case under Rule 41, which clearly provides that a stipulation of dismissal automatically takes effect upon filing "without order of the court" unless a specific federal statute requires otherwise. Defendants further assert that the Antitrust Procedures and Penalties Act of 1974, 15 U.S.C. § 16(b)-(h) (Tunney Act), which Judge Greene cited as a ground for treating the stipulation as lodged, is not a proper basis for judicial review of a stipulation of voluntary dismissal since the Tunney Act does not apply to dismissals under Rule 41(a)(1).
The Court rejects defendants' position on several grounds. First, this same argument was urged by defendants in the 1974 case and rejected by Judge Greene, who determined that although the pleading was labelled "Stipulation of Voluntary Dismissal", it was in substance a "consent decree . . . in which AT&T essentially agreed to the relief sought by the Government."
United States v. AT&T, C.A. No. 74-1698, Tr. 25042-43. See also Gregg Communications Systems, Inc. v. American Telephone & Telegraph Co., 98 F.R.D. 715, 718 (N.D. Ill. 1983); United States v. Mercedes-Benz of North America, Inc., 547 F. Supp. 399, 400 (N.D. Cal. 1982). Moreover, defendants who did not appeal this decision but rather acquiesced in the court's ruling, cannot now seek "judicial review" of that decision. Second, assuming plaintiff did not file its complaint within one year after the termination of the 1974 case, the complaint nonetheless sufficiently alleges that defendants engaged in a continuous conspiracy to violate antitrust laws up to February 1983 when plaintiff commenced this action and that defendants committed unlawful acts within the statutory period causing injury to plaintiff. See Fleer Corp. v. Topps Chewing Gum, Inc., 415 F. Supp. 176 (E.D. Pa. 1976); Cf. Barnosky Oils, Inc., 665 F.2d at 81. It is well established for purposes of the statute of limitations that a cause of action for a continuous antitrust violation accrues each time a plaintiff is injured by an act of the defendant. Id. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S. Ct. 795, 28 L. Ed. 2d 77 (1971); Poster Exchange, Inc. v. Nat'l Screen Service Corp., 517 F.2d 117, 126-28 (5th Cir. 1975). In essence, the alleged conspiracy consists of a "continuing series of acts upon which successive causes of actions may accrue." Postal Exchange, Inc., 517 F.2d at 125. The statute of limitations for those damages begins to run from the time the illegal act occurs. Zenith Radio Corp., 401 U.S. at 338. Accepting the allegations of the complaint as true and construing them in the light most favorable to plaintiff, it is not clear from the face of the complaint that all the alleged unlawful acts of defendants which caused injury to plaintiff occurred more than four years before the filing of the complaint. For the reasons expressed in this Opinion, the Court will deny the motion of defendants to dismiss. Accordingly, it is this 28th day of June, 1984,
Ordered that the motion of defendants to dismiss on statute of limitations grounds be, and hereby is, denied.