Janice Carder v. BASF Corporation
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-02778-COA
JANICE CARDER AND LARRY CARDER
APPELLANTS
v.
BASF CORPORATION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/19/2003
HON. WILLIAM G. WILLARD, JR.
WASHINGTON COUNTY CHANCERY COURT
HARVEY CURTIS CROWLEY
BRENT HAZARD
JOHN A. CRAWFORD
PATRICK RYAN BECKETT
CIVIL - OTHER
AFFIRMED: 06/28/2005
BEFORE KING, C.J., CHANDLER AND BARNES, JJ.
KING, C.J., FOR THE COURT:
¶1.
Janice and Larry Carder appeal from the granting of summary judgment in the Chancery Court
of Washington County in their civil antitrust action against BASF Corporation.
¶2.
They argue the following issues:
1. The trial court erred in dismissing the Plaintiffs’ second amended complaint for failure
to state a claim upon which relief can be granted, and conducted a “trial by paper,” rather than
examining the Plaintiff’s complaint under Mississippi’s notice pleading rules.
2. The trial court erred in dismissing Plaintiff’s second amended complaint for failure to
state a claim upon which relief can be granted without giving the Plaintiffs adequate time for
discovery.
3. The trial court erred in dismissing the Plaintiffs’ claims as barred by the statute of
limitations where the Plaintiffs did not discover, nor in the exercise of reasonable diligence could
have discovered, BASF’s malfeasance and resulting injuries.
¶3.
Finding that issue 3 is dispositive of this action, we affirm the grant of summary judgement.
STATEMENT OF THE FACTS
¶4.
On December 2, 2002, Janice Carder filed an action in the Chancery Court of Washington County
on behalf of herself and unnamed John Does, alleging price fixing by the defendants in the sale of vitamins
and vitamin-related products. On April 29, 2003, Carder filed a second amended complaint, which added
her husband as a named plaintiff. In their second amended complaint, the Carders alleged that BASF, a
major vitamin and organic chemical distributer, engaged in a conspiracy to fix prices and allocate markets
and volume of sales of its products within Mississippi in violation of Mississippi Code Annotated section
75-21-1 through 39 (Rev. 2000) (Mississippi’s antitrust statutes). BASF is a foreign corporation which
has sold and distributed vitamins, vitamin premixes, bulk vitamin products and organic chemicals in
Mississippi since 1978.
¶5.
On May 28, 2003, BASF filed a 12(b)(6) motion to dismiss, which argued that the Carders’ action
was time barred by the three year statue of limitation found in Mississippi Code Annotated section 15-149(1)(Rev. 2003). In support of its position that the Carders’ claim was time barred, BASF attached to
its motion as exhibits several newspaper articles showing that its action were a matter of public knowledge.
These included : (1) a USA Today article dated March 3, 1999; (2) a Dallas Morning News article, dated
May 20, 1999; (3) a Washington Post article, dated May 20, 1999; (4) an Associated Press article dated
May 20, 1999; (5) an article in The Financial Times of London, dated May 20, 1999; (6) an article in The
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Toronto Star, dated May 21, 1999; (7) an article in the Sydney, Australia Daily Telegraph, dated May 21,
1999; and (8) an article in the October 7, 1998 Wall Street Journal.
¶6.
The Carders argued that Mississippi Code Annotated section 15-1-49 (2) (Rev. 2003), which
provides that for latent injuries, the cause of action does not accrue until the plaintiff has discovered or with
reasonable diligence should have discovered the injury, was the correct limitation statute to apply. The
Carders filed affidavits, which stated that they learned of the actions of BASF in the year 2002.
¶7.
The chancellor heard arguments on the motion to dismiss on October 30, 2003. On November 19,
2003, the chancellor executed an order dismissing the Carders’ claims. The chancellor gave two reasons
for his dismissal of the Carders’ complaint. First, he said that the Carders had properly alleged that BASF
had engaged in an interstate and international conspiracy to unlawfully fix the price of vitamin products, but
they had not shown that the actions of BASF met the requirement of the Mississippi antitrust law,
Mississippi Code Annotated sections 75-21-1 through 39 (Rev. 2000), specifically that BASF’s
conspiracy occurred wholly within Mississippi. Secondly, the chancellor dismissed the action because the
Carders had failed to bring the action within the three-year statute of limitations. The complaint alleges that
the conspiracy began not later than 1989 and that the Carders did not learn of it until 2002. They filed the
civil action in April 2003.
¶8.
BASF has already settled with twenty three states and the District of Columbia for $305 million for
violations of federal antitrust law and its parent company entered a guilty plea to certain criminal violations
of federal antitrust law. See, e.g., In re Vitamins Anti-Trust Litigation, 29 F.R.D. 251 (2002) (BASF
ordered to pay criminal fine of $225 million for vitamin price fixing after pleading guilty to federal antitrust
laws); Alaska ex rel. Atty. Gen. Botoelho v. Hoffman-La Roche, Inc., No. Civ. A. 01 1583, Aug. 3,
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2001 (D.C.Cir.) (BASF along with other vitamin makers are enjoined from price-fixing and ordered to pay
part of a $4.4 million settlement with seven states.).
ANALYSIS
¶9.
The standard of review for a motion to dismiss for failure to state a claim upon which relief can
be granted is that the motion raises a question of law which this Court reviews de novo. Poindexter v.
Southern United Fire Ins.Co., 838 So.2d 964, 966 (¶ 12) (Miss. 2003). “[T]he allegations in the
complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that
the plaintiff will be unable to prove any set of facts in support of his claim.” Id.
¶10.
A motion to dismiss is not favored and should not be granted unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Tucker v.
Hinds County, 558 So.2d 869, 872 (Miss. 1990).
Statute of Limitations
¶11.
The application of a statute of limitations is a question of law so that on appeal this Court applies
a de novo review with the Court reviewing the evidence in the light most favorable to the non-moving party.
Jackpot Mississippi Riverboat, Inc. v. Smith, 874 So. 2d 959, 960 (¶ 4) (Miss. 2004).
¶12.
The trial court found that the action was barred by Mississippi Code Annotated section 15-1-49
(Rev. 2003), the three-year statute of limitations. The court noted that this action was barred even under
the longer statue, and held it unnecessary to determine which period of limitation applied to the civil
penalties. The plaintiffs argue that section (2) of that statute on latent injuries applies and the cause of action
does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered the
injury. The reason for the rule is that it would be illogical to bar a plaintiff’s claim for injuries for which he
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is unaware, or in the exercise of reasonable diligence could not have become aware. Owens-Illinois v.
Edwards, 573 So. 2d 704, 708 (Miss. 1990). The Carders allege that they were unable to discover the
actions of BASF because of its fraudulent concealment. Fraudulent concealment applies to any cause of
action, and will toll the statue of limitations. Stephens v. Equitable Life Assurance Society of the United
States, 850 So.2d 78 (¶ 18) (Miss. 2003). However, a plaintiff, who seeks to avail himself of the
fraudulent concealment doctrine, must plead fraudulent concealment, and then prove that some affirmative
act or conduct was done by the defendant which prevented discovery of a claim and that due diligence
was performed on his part to discover it. Id. The plaintiffs pled fraudulent concealment in the second
amended complaint.
¶13. The undertaking of a criminal conspiracy is seldom if ever, announced to the public. The efforts of
BASF to engage in price fixing was just such a conspiracy. It is therefore subject to the period of limitations
for latent injuries. That is that the period of limitation commences on the date of discovery, or when with
due diligence, the injury could have been discovered.
¶14.
While applying the latent injury limitation to this action, this Court finds that this information was
placed in the public domain as early as October 7, 1998, with the publication of The Wall Street Journal
article. From and after that date, the dissemination of this information increased in an ever widening circle.
When the information is placed in the public domain, the doctrine of fraudulent concealment ceases to be
applicable. Thus the chancellor correctly held that these claims would be time barred.
¶15. This opinion is not intended to suggest that information published in a newspaper located anywhere
automatically is sufficient to commence the running of the statute of limitation on a latent injury, but is limited
solely to the facts of this case.
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¶16. THE JUDGMENT OF THE CHANCERY COURT OF WASHINGTON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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