M. D. Rutledge v. Boston Woven Hose and Rubber Company, a Division of American Biltrite, Inc., a Corporation

This appeal arises from the dismissal of the second of two antitrust lawsuits filed by plaintiff Rutledge against various hydraulic hose manufacturers and assemblers. Rutledge’s first suit was filed in 1969 against five hose manufacturers and seven hose assemblers alleging a price fixing conspiracy in violation of Sections 1 and 2 of the Sherman Act and price discrimination in violation of the Clayton and Robinson-Pat-man Acts. (Rutledge v. Electric Hose and Rubber Co. (C.D.Cal.1971) 327 F.Supp. 1267 (hereinafter referred to as Rutledge I).) The trial judge in Rutledge I entered judgment dismissing the action at the close of Rutledge’s case and this court affirmed on January 30, 1975. ( 511 F.2d 668 .)

On March 7,1975, Rutledge filed the complaint in this case (hereinafter referred to as Rutledge II). The Rutledge II complaint is almost a carbon copy of Rutledge I, except that (1) Boston Woven Hose and Rubber Company (“Woven Hose”), which had not been a party to the first suit, was named as a defendant in the second suit, 1 and (2) plaintiff averred that Woven Hose was guilty of price discrimination in granting a secret additional discount to certain favored customers and not to…

dissenting:

I dissent from the holding that Rutledge’s claim was time-barred and would remand for further proceedings. In my view Rutledge had the right to accept with *251 out mistrust the alleged fraudulent misrepresentations by Woven Hose. In the absence of new grounds for suspicion such misrepresentations in my judgment, if credible and if accepted and relied upon, should relieve the victim of any further burden of investigation or discovery.

576 F.2d 248 1978-1 Trade Cases 62,117 M. D. RUTLEDGE, Appellant, v. BOSTON WOVEN HOSE AND RUBBER COMPANY, a Division of American Biltrite, Inc., a corporation, Appellee. No. 76-1231. United States Court of Appeals, Ninth Circuit. June 7, 1978. Robert L. Wilson (argued), Los Angeles, Cal., for appellant. Douglas C. Conroy (argued), Los Angeles, Cal., for appellee. Appeal from the United States District Court for the Central District of California. Before MERRILL and HUFSTEDLER, Circuit Judges, and THOMPSON, * District Judge. HUFSTEDLER, Circuit Judge: 1 This appeal arises from the dismissal of the second of two antitrust lawsuits filed by plaintiff Rutledge against various hydraulic hose manufacturers and assemblers. Rutledge's first suit was filed in 1969 against five hose manufacturers and seven hose assemblers alleging a price fixing conspiracy in violation of Sections 1 and 2 of the Sherman Act and price discrimination in violation of the Clayton and Robinson-Patman Acts. (Rutledge v. Electric Hose and Rubber Co. (C.D.Cal.1971) 327 F.Supp. 1267 (hereinafter referred to as Rutledge I ).) The trial judge in Rutledge I entered judgment dismissing the action at the close of…