Knauf Insulation, Inc. (formerly named Knauf Insulation, GmbH), is the Delaware subsidiary of a German corporation. Its principal place of business is in Indiana, where it manufactures fiberglass insulation for sale to, among other types of customer, distributors of insulation, such as SBI, as the parties refer to defendant Southern Brands, Inc. (SBI is, or was, a broker as well as a distributor, because Knauf often delivered the insulation it sold SBI directly to the installers of the insulation, SBI’s customers. But the parties call SBI a distributor and we’ll stick with that term.) The other defendants, the Dowds, a married couple, are SBI’s principals.
For many years SBI was delinquent in paying Knauf for the insulation it bought. By 2012, when Knauf filed this suit against both SBI and the Dowds (who in 2003 had signed a personal guaranty of their company’s debt to Knauf), SBI owed Knauf more than $3.5 million. Originally filed in an Indiana state court, the suit was removed to federal district court, the parties being of diverse citizenship. Indiana law is agreed to govern the issues presented by the suit. The district judge granted summary judgment in favor of Knauf, and her final judgment awarded it the money owed by SBI plus interest on that debt.
The defendants — SBI and the Dowds— have appealed on multiple grounds. Two pertain to the Dowds’ guaranty, executed in 2003, of SBI’s debts to Knauf. The disputed provisions of the guaranty state that “the undersigned hereby unconditionally guarantees the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, of all obligations of the DEBTOR [i.e., SBI] to the CREDITOR, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or hereafter existing, or due or to become due,” and “any action to enforce this guaranty may be brought in, and the undersigned hereby consents and submits to the jurisdiction of, the courts of the State of Indiana.”
The district court ruled that the Dowds’ guaranty made them personally liable for all of SBI’s debts to Knauf. The Dowds disagree, arguing that when they signed the guaranty they didn’t “intend or contemplate being sued by Knauf in Indiana on its much larger claims against SBI, arising more than four years later,” and that despite the forum-selection clause “SBI, an out-of-state distributor doing business in the southeast, did not have such minimum contacts with Indiana as would subject it to Indiana’s jurisdiction.”
These arguments have no merit. The guaranty is explicit that it covers future as well as current obligations, for remember that it embraces “all obligations of the DEBTOR to the CREDITOR, howsoever created, ... whether ... now or hereafter existing, or due or to become due.” Under Indiana law “a continuing guaranty encompasses all transactions, including those arising in the future, that are within the contemplation of the agreement,” S-Mart, Inc. v. Sweetwater Coffee Co.,
As for SBI’s contacts with Indiana, it didn’t have to have any contacts with that state in order to bind itself by a forum-selection clause, which typically requires one of the parties to the clause to litigate in a jurisdiction with which it has sparse if any contacts, as otherwise there would be no need for the clause. See Carnival Cruise Lines, Inc. v. Shute,
The Dowds further argue that the “disparity in bargaining power” between Knauf and SBI left them with no choice but to sign the guaranty, and so, was neither “freely negotiated” nor “just and reasonable,” as Indiana law requires forum-selection clauses to be for them to be enforceable. See, e.g., Farm Bureau General Ins. Co. of Michigan v. Sloman,
A class action called Columbus Drywall & Insulation, Inc. v. Masco Corp. filed in 2004 charged Knauf and other manufacturers of fiberglass insulation with having conspired since 1999 with Masco Corporation, the largest insulation contractor and distributor in the United States, to sell residential fiberglass insulation to other contractors at prices significantly higher than those offered to Masco, thus violating the Sherman Act, 15 U.S.C. § 1, by forcing those contractors to overpay for insulation. See Columbus Drywall & Insulation, Inc. v. Masco Corp.,
SBI was originally a member of the proposed class (“proposed” because it was never certified), but in January 2006 the district judge presiding in Columbus Drywall granted the motion of the named plaintiffs to amend their complaint to drop from the class all but insulation contractors. SBI, being a .distributor and not a contractor, was therefore out. Two years later the district court approved a settlement in Columbus Drywall that resulted in Knaufs .being dismissed from the case. Five years after that SBI filed a counterclaim in the present case that accused Knauf of .having been guilty of the price fixing, of which it had been accused in Columbus Drywall — which if true would of course have harmed SBI, as Knauf supplied SBI with the insulation that SBI resold to its customers. The settlement in Columbus Drywall had made no finding of guilt on the part of any of the defendants, including Knauf, but neither had it exonerated the defendants; it was, after all, just a settlement, not an adjudication.
But 2013 was too late for SBI’s counterclaim. The statute of limitations governing Sherman Act claims is only four years, 15 U.S.C. § 15b, though of course it’s tolled (postponed — stops running) once a suit is brought within the limitations period. American Pipe & Construction Co. v. Utah,
We could stop here if American Pipe stood for the proposition that the tolling 'of a limitations period can never resume after a claimant is dropped from a class action. But it does not stand for that proposition, as we can explain by comparing two types of limitations period that are similar but not identical — statutes of limitations and statutes of repose — even though there is no statute of repose applicable to this case. Statutes of limitations run from the injury or other wrong giving rise to a suit; statutes of repose run from the action or transaction that gave rise to the injury. See CTS Corp. v. Waldburger, — U.S. -,
Statutes of limitations are routinely subject to “equitable tolling,” meaning that a plaintiff can sue after the expiration of the limitations period (that is what “tolling” a statute of limitation means) if it had a good reason for its delay in suing and has suffered a harm greater than the defendant suffered or is likely to suffer as a result of being sued after the limitations period expired.
There is as we said no statute of repose in this case. Our use of the term “statute of repose analysis” is merely intended to flag the Issue of whether a limitations period that begins to run (or, ás in this Case, to re-run) not when an injury is inflicted but when some transaction or other event' occurs — which is this case, because the statute of limitations applicable to SBI’s antitrust counterclaim resumed running when SBI was dropped from the class — can ever be subject to equitable tolling. As a result of recent Supreme Court • decisions, we now know that the answer is that it can be. Menominee Indian Tribe of Wisconsin v. United States, — U.S. -,
To permit' equitable tolling in such a case, provided there'is a justification created by an' extraordinary event, makes sense. Suppose the Dowds had been in a serious accident the day before SBI was dropped from the class, and as a result they had lapsed into comas, where they remained, unconscious, for a year. Provided that delaying suit by a year would npt have imposed a serious hardship on Knauf, the counterplaintiffs (the. Dowds and SBI) would have had a colorable argument for equitable tolling. And likewise in In re Copper Antitrust Litigation,
Our court used to think that statutes of repose, and by extension statutes of limitations that begin to run or re-run independently of whether there is an injury, as in class-action cases such as the present, could not be tolled. We said in Beard v. J.I. Case Co.,
SBI does not invoke equitable tolling by name, but it argues in a similar vein that through no fault of its own it was in the dark — had no idea that it had been expelled from the class and that the statute of limitations applicable to its antitrust claim had therefore resumed running. We are not persuaded. The Columbus Drywall suit had been filed in Georgia, SBI’s home, nine years before SBI filed its counterclaim. SBI couldn’t have failed to notice the class action suit, in its own state, against Knauf, its principal supplier and creditor, or the settlement of the suit in 2008, which contained no finding that Knauf had committed an antitrust violation. More importantly SBI-should have known of the suit, and that is what matters — recall the emphasis on diligence in the Holland case.- SBI couldn’t just sit on its fanny for nine years, making no inquiry into the status of the Columbus Drywall litigation, and insist that its indolence tolled the statute of limitations.-
Courts “have allowed equitable tolling ... where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.... [T]he principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect.” Irwin v. Department of Veterans Affairs,
SBFs remaining arguments can be dispatched summarily. One is that SBI hadn’t agreed with Knauf that all the debts listed in a February 1, 2012, account statement (“an agreement between the parties that all items of an account and balance are correct, together with a promise, express or implied, to pay the balance,” Jackson v. Trancik,
The defendants’ final argument is that Knauf has failed to explain whether it credited some $1.3 million that SBI paid it between October 2008 and January 2012 against SBI’s debts to it. But SBI would surely have noticed had the account statements that it admits having received from Knauf during this period failed to reflect a $1.3 million credit; nor did SBI plead the $1.3 million or any part of it as a setoff to Knauf s claim or present any evidence that it had paid that amount, beyond a declaration by Mr. Dowd that it “may be that Knauf has not credited these $1.3 million in payments,” (emphasis added), which is pure speculation.
And so the judgment of the district court is
AFFIRMED.