Submitted: March 16, 2016
from United States District Court for the Western District of
Missouri - Kansas City
WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Morgan-Larson, LLC, Johnson Auto Electric, Inc., Speed Stop
32, Inc., and Yocum Oil Company, Inc. (collectively
"Plaintiffs" or "Plaintiff-Appellants")
appeal the district court's dismissal of their claims for
damages in their action against Defendants
Ferrellgas and AmeriGas under Section 1 of the Sherman
Act, see 15 U.S.C. § 1. For the reasons stated
below, we affirm the judgment of the district court.
United States, Ferrellgas and AmeriGas (together,
"Defendants") are the largest distributors of
pre-filled propane exchange tanks, which are portable steel
cylinders containing propane that are used primarily to power
outdoor grills and heaters. The tanks come in a standard size
and are capable of being filled with up to 20 pounds of
propane. Before 2008, the tanks were filled with 17 pounds of
propane. From 2006 to 2008, the cost of propane rose and in
2008, Defendants reduced the fill level of the tanks from 17
to 15 pounds of propane per tank while maintaining the same
price per tank.
2009, a group of plaintiffs ("2009 Plaintiffs")
filed a class action lawsuit against Defendants alleging that
Defendants had acted in concert to reduce the amount of
propane contained within the tanks while maintaining the same
price per tank, and thus artificially increasing the price of
the tanks. Amended Complaint at ¶¶ 1-4, In re
Pre-Filled Propane Tank Mktg. & Sales Practices
Litig., No. 09-2086, 2010 WL 2008837 (W.D. Mo. May 19,
2010) (hereinafter "In re Propane I"). The
2009 Plaintiffs claimed that the actions of Defendants
violated Section 1 of the Sherman Act, as well as state
antitrust and consumer protection laws. The named plaintiffs
in In re Propane I were all indirect purchasers,
individuals who purchased the pre-filled propane exchange
tanks from companies to whom Defendants initially sold the
tanks. However, in their amended complaint, the 2009
Plaintiffs defined their class as "[a]ll persons who
purchased a Propane Tank sold, marketed, or distributed by
any Defendant during the applicable limitations period."
December 8, 2009, the 2009 Plaintiffs moved for preliminary
approval of settlement agreements. The class action
settlement agreements were finally approved by the district
court on October 6, 2010. The AmeriGas settlement agreement
defined the settlement class as "all people who
purchased or exchanged one or more of AmeriGas's
pre-filled propane gas cylinders in the United States not for
resale, between June 15, 2009 and November 30, 2009."
The Ferrellgas settlement agreement defined the settlement
class as "all people who purchased or exchanged one or
more of Ferrellgas's pre-filled propane gas cylinders in
the United States not for resale, between June 15, 2009 and
the date of Preliminary Approval." The date of
preliminary approval was October 13, 2011.
March 27, 2014, the Federal Trade Commission
("FTC") issued a complaint against Defendants
alleging that they had restrained price competition because
of their 2008 decision to decrease the fill level of the
propane tanks. Shortly thereafter, in October 2014,
Plaintiffs and other direct and indirect purchasers filed the
present suit. Plaintiff-Appellants are all direct purchasers,
that is purchasers who purchased tanks directly from
Defendants for resale. In their complaint, Plaintiffs allege
that the 2008 reduction in fill level was the product of
improper collusion between Defendants, and despite the
settlement agreements, Defendants continue to conspire and
maintain their illegally agreed upon fill levels in violation
of Section 1 of the Sherman Act.
district court determined that Plaintiffs' claims are
barred by the statute of limitations. The court concluded
that none of the tolling theories advanced by Plaintiffs were
sufficient to adjust or toll the statute of limitations.
Accordingly, the district court granted Defendants'
Motion to Dismiss Plaintiffs' claims for
damages.Plaintiffs timely appealed. On appeal,
Plaintiffs argue that the district court erred in failing to
find that the continuing violations theory, which has the
effect of restarting the limitations period, prevented the
dismissal of Plaintiffs' claims. No other issues are
raised on appeal.
review a district court's grant of a motion to dismiss de
novo." Christiansen v. W. Branch Cmty. Sch.
Dist., 674 F.3d 927, 933-34 (8th Cir. 2012). We take the
facts alleged in the complaint as true. Bradley
Timberland Resources v. Bradley Lumber Co., 712 F.3d
401, 406 (8th Cir. 2013). Whether a party's claim is
barred by the statute of limitations is a question of law
that we review de novo. McDonough v. Anoka Cnty.,
799 F.3d 931, 939-40 (8th Cir. 2015).
brought under Section 1 of the Sherman Act must be filed
within four years of the accrual of the cause of action or
they are barred by the Sherman Act's statute of
limitations. 15 U.S.C. § 15b. "Generally, a cause
of action [under the Sherman Act] accrues and the statute
begins to run when a defendant commits an act that injures a
plaintiff's business." Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 338 (1971)
(citations omitted). Where a plaintiff's interests are
repeatedly invaded, a continuing violation occurs. Pace
Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 237
(9th Cir. 1987) (citation omitted). "However, even when
a plaintiff alleges a continuing violation, an overt act by
the defendant is required to restart the statute of
limitations and the statute runs from the last overt
act." Varner v. Peterson Farms, 371 F.3d 1011,
1019 (8th Cir. 2004) (internal quotation marks and citation
omitted). "An overt act has two elements: (1) it must be
a new and independent act that is not merely a reaffirmation
of a previous act, and (2) it must inflict new and
accumulating injury on the plaintiff." Id.
(citing Pace Indus., 813 F.2d at 238). "Acts
that are merely unabated inertial consequences of a single
act do not restart the statute of limitations."
Id. (internal quotation marks and citation omitted).
have alleged two distinct types of overt acts that occurred
within the limitations period: (1) Defendants' sales to
Plaintiffs at artificially inflated prices; and (2)
conspiratorial communications between Defendants regarding
pricing and fill levels. Plaintiffs argue that either ...