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LANG v. PAINE

March 26, 1984

A. BRUCE LANG, Plaintiff, against PAINE, WEBBER, JACKSON & CURTIS, INCORPORATED, Defendant.


The opinion of the court was delivered by: CONNER

OPINION AND ORDER

CONNER, D.J.:

 Plaintiff A. Bruce Lang ("Lang") commenced this action on February 3, 1983 against defendant Paine, Webber, Jackson & Curtis, Incorporated ("Paine Webber"), alleging federal claims for violations of the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. (the "Act") and a common law claim for breach of fiduciary duty. *fn1" The dispute concerns the manner in which plaintiff's brokerage account was handled during the period March 1978 through March 1980. The case is currently before the Court on defendant's motion for partial summary judgment on the ground that plaintiff's federal securities law claims are barred by the applicable statute of limitations insofar as they are based upon pre-February 3, 1980 transactions. For the reasons stated below, the motion is granted in part.

 I.

 Because the Act does not provide a limitations period, I must look to the law of New York, as the forum state, to determine whether any of plaintiff's claims are time-barred. Arneil v. Ramsey, 550 F.2d 774, 779 (2d Cir. 1977); Haberman v. Tobin, 466 F. Supp. 447, 449 (S.D.N.Y. 1979); Natural Resources Corp. v. Royal Resources Corp., 427 F. Supp. 880, 882 (S.D.N.Y. 1977). References to New York law also includes resort to its borrowing statute, e.g., Sack v. Low, 478 F.2d 360, 365 (2d Cir. 1973), which provides that:

 An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

 N.Y.Civ.Prac. Law § 202 (McKinney 1972).The avowed purpose of § 202 is "to protect New York resident-defendants from suits in New York that would be barred by shorter statutes of limitations in other states where non-resident-plaintiffs could have brought suit." Stafford v. International Harvester Co., 668 F.2d 142, 151 (2d Cir. 1981) (emphasis omitted), quoting Sack, 478 F.2d at 367. Thus, it prevents forum shopping by a nonresident.

 It is uncontested that Lang is a Canadian citizen, residing in Ottawa. Consequently, the borrowing statute bars his claim if it accrued in a jkurisdiction outside of New York and the limitations period in that jurisdiction has expired. The Court must, therefore, examine the facts underlying this dispute in order to ascertain where plaintiff's claims accrued for purposes of the borrowing statute.

 II.

 In the context of a motion for summary judgment, the Court cannot, of course, resolve disputed issues of fact, but can only determine whether there are issues of fact to be tried. See SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978). In making this determination, the Court will consider affidavits, depositions, interrogatory answers, and admissions, but will not give any effect to mere conclusory allegations or denials or to unsubstantiated assertions. Id. When the moving party comes forward with evidence supporting a particular assertion, his "opponent cannot rest on the allegations of the complaint but must adduce factual material which raises a substantial question of the veracity or completeness of the movant's showing or presents countervailing facts." Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972).

 In support of its motion, Paine Webber has submitted a Local Rule 3(g) statement *fn2" of undisputed facts, supported by excerpts from the deposition of plaintiff, Rule 36 admissions by plaintiff, and copies of relevant monthly statements and confirmation slips for plaintiff's accouant. Although Lang did not file either a couantervailing Rule 3(g) statement, as required by the rules of this Court, or any affidavits contradicting Paine Webber's factual showing, he wastes considerable time arguing that the Court should not consider his deposition at this stage because his attorney has not been afforded an opportunity for cross-examination. That argument is utterly without merit. Because the deposition on which defendant seeks to rely is that of plaintiff himself, Lang is uniquely qualified to disavow any of the statements defendant has submitted.If Lang now disputes any of his testimony from that deposition, or if he believes that his words have been misconstrued or taken out of context, he has had ample opportunity to file an affidavit controcerting Paine Webber's evidentiary showing. Having failed to do so, the Court can only assume that he accedes to Paine Webber's presentation. Moreover, under Rule 801(d)(2)(A), F.R.E., an admission of a party-opponent is always admissible against him.Thus, there exists absolutely no reason to preclude defendant's use of plaintiff's deposition in support of the instant motion.

 III.

 Paine Webber has demonstrated the following uncontroverted facts relevant to the question of where and when Lang's claims accrued:

 In March 1978, Lang opened a brokerage account with Paine Webber's Boston, Massachusetts office, following a telephone conversation with Russell Kramp ("Kramp"), an account executive in that office. See Lang Dep. at 177, 774; Def. Rule 3(g) Statement at P3. Plaintiff opened the account by withdrawing approximately $25,000 he had on deposit in an account at the Pacific National Bank in Nantucket, Massachusetts, and using it to purchase through Paine Webber 500 shares of stock in the Monsanto Company on March 21, 1978. *fn3" See Lang Dep. at 774-75, 823; Def. Rule 3(g) Statement at P3; Pl. Ans. to Def. Requests for Admissions at P7. All of the documents that Lang was required to sign in order to open and maintain his account -- including a customer's agreement, a declaration of ...


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