UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
March 30, 1984
Felix S. Klock
Lehman Brothers Kuhn Loeb Incorporated, Michael Cavanaugh and Geoffrey Horner
The opinion of the court was delivered by: WARD
WARD, District Judge
In May 1978, Felix S. Klock opened an account with Lehman Brothers Kuhn Loeb, Inc. ("Lehman") and authorized Lehman to effect trades in securities and commodities options on his behalf. After suffering significant losses, Klock closed his account in October 1979. Thereafter, on May 19, 1983, he filed this lawsuit, alleging that Lehman and two of its employees, Michael Cavanaugh and Geoffrey Horner, improperly and illegally managed his account and engaged in excessive transactions without his approval. Plaintiff claims that he incurred substantial losses as a result of defendants' conduct. He seeks damages for "churning," for common law fraud and for breach of contract.
Defendant Lehman moves pursuant to Rules 12(b)(6) and 9(b), Fed. R. Civ. P., for an order of this Court dismissing the complaint primarily on the ground that this action is time-barred by the applicable statute of limitations.
For the reasons hereinafter stated, Lehman's motion is granted in part and denied in part.
Plaintiff is, and at all times material to this action was, a resident of Connecticut. Lehman is a member of the New York Stock Exchange and other exchanges, and is registered as a broker-dealer with the Securities and Exchange Commission. The individual defendants were registered representatives employed by Lehman, and are alleged to have acted at all times material to this action within the course and scope of their employment and with the express or apparent authority of Lehman. Jurisdiction over this action is said to arise from 28 U.S.C. §§ 1331, 1332 by reason of both the claims which arise under the laws of the United States and the diversity of citizenship of the parties.
According to the complaint, Cavanaugh telephoned plaintiff in May 1978 and induced him to open an account with Lehman. At that time, plaintiff entered into an agreement with Lehman pursuant to which Lehman was authorized, in consideration for receiving commissions from plaintiff, to effect securities and options contract transactions on plaintiff's behalf. Plaintiff alleges that from about May 1978 through about October 1979, defendants engaged in such transactions on plaintiff's behalf, without consulting plaintiff or obtaining his approval. During this time defendants allegedly exercised exclusive and total control over plaintiff's account. Plaintiff complains that defendants engaged in unnecessary and objectionable trades during this period in order to earn excessive commissions. As a result of these transactions, according to the complaint, plaintiff suffered losses in the amount of $895,600.57. Additionally, plaintiff was allegedly required to pay margin interest in 1978 and 1979 totalling $93,545.37, plus commissions during this period equal to $216,309.87.
The complaint was filed on May 19, 1983, and sets forth six Claims for Relief based on these allegations. The First Claim asserts a cause of action under section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b) ("section 10(b)")
and the rules and regulations promulgated thereunder.Secondly, plaintiff urges that defendants' conduct is actionable as common law fraud. The Third Claim seeks relief for Lehman's alleged breach of contractual obligations to (i) act with due care and diligence with respect to plaintiff's account; (ii) supervise its employees working on plaintiff's account and insure that they acted in plaintiff's best interests; and (iii) act in good faith towards plaintiff. Lehman is charged in the Fourth Claim for Relief with violations of section 20(a) of the Securities Exchange Act, 15 U.S.C. § 78t(a) ("section 20(a)") for breach of its duties as the "controlling person" of the individual defendants.
Lehman's conduct is alleged, in the fifth claim, to have violated Rule 405 of the Rules of the New York Stock Exchange ("NYSE Rule 405"), and, in the Sixth, to contravene Section 2 of Articles III of the Rules of Fair Practice of the National Association of Securities Dealers (the "NASD Rule").
In a Seventh, and final, Claim for Relief, plaintiff seeks damages for breach of an alleged contract for the exchange of tax-free municipal bonds. Plaintiff asserts that, after opening his account with Lehman, he delivered to defendants, at defendants' request, tax-free municipal bonds valued at approximately $350,000.00 for the purpose of exchanging them for bonds of like quality but higher yield. Defendants allegedly breached this agreement by using these bonds as collateral for margin coverage, which use enabled defendants to purchase additional securities for plaintiff's account. As a result of the large losses in plaintiff's account, plaintiff claims he was forced to liquidate the bonds for $341,200.00, and to use this entire amount to pay off a portion of his margin debt. Accordingly, plaintiff seeks additional damages in the amount of $341,200.00 by reason of this alleged breach of contract.
Lehman has filed a motion for an order of this Court dismissing the complaint pursuant to Rules 12(b)(6) and 9(b), Fed. R. Civ. P. In support of the Rule 12(b)(6) ground, Lehman argues that plaintiff failed to file this lawsuit within the relevant statutory period, and that the complaint otherwise fails to state a claim upon which relief can be granted. Relying on Rule 9(b), Lehman also seeks dismissal of the fraud claims on the ground that plaintiff has failed to plead fraud with the requisite particularly.
A. The Fraud Claims
Lehman argues that plaintiff's claims under sections 10(b) and 20(a) of the Securities Exchange Act, as well as his claims for common law fraud are barred by the applicable statute of limitations. According to Lehman, this Court must apply the relevant statute of limitations of the state of plaintiff's residence, Connecticut. Lehman argues that the limitations period prescribed by the appropriate Connecticut statute is at most three years, and that the instant complaint was not filed within that time period.
The Securities Exchange Act prescribes no period of limitations for actions brought under sections 10(b) or 20(a). In such situations, federal courts refer to the relevant statute of limitations of the forum state, in this instance, New York. This reference must include application of New York's "borrowing statute," N.Y. Civ. Prac. Law § 202.
See, e.g., Cope v. Anderson, 331 U.S. 461, 465, 91 L. Ed. 1602, 67 S. Ct. 1340 (1947); Armstrong v. McAlpin, supra, 699 F.2d at 86, 89; Industrial Consultants, Inc. v. H.S. Equities, Inc., 646 F.2d 746, 747 (2d Cir. 1981), cert. denied, 454 U.S. 838, 70 L. Ed. 2d 120, 102 S. Ct. 145 (1981); Stull v. Bayard, 561 F.2d 429, 431 (2d Cir. 1977), cert. denied, 434 U.S. 1035, 54 L. Ed. 2d 783, 98 S. Ct. 769 (1978); Arneil v. Ramsey, 550 F.2d 774, 779-80 (2d Cir. 1977); Sack v. Low, 478 F.2d 360, 365-68 (2d Cir. 1973). Under that statute, a lawsuit instituted in New York by a non-resident based upon a cause of action accruing in a state other than New York is time-barred if the statute of limitations of either that state or New York had expired prior to the institution of the lawsuit.
In actions alleging fraudulent violations of the federal securities laws, the Second Circuit has consistently adopted state statutes of limitations for actions based upon common law fraud. See, e.g., Armstrong v. McAlpin, supra, 699 F.2d at 86; Stull v. Bayard, supra, 561 F.2d at 431; Klein v. Shields & Co., 470 F.2d 1344, 1346 (2d Cir. 1972); Klein v. Auchincloss, Parker & Laboratories, Inc. v. Philippine National Bank, 426 F.2d 1023, 1025 (2d Cir. 1970). But see Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 409 (2d Cir. 1975) (applying Texas law).
Ordinarily, then, the six-year limitations period established in N.Y. Civ. Prac. Law § 213(8) for "an action based on fraud" would apply to securities fraud suits brought in New York.
However, the Second Circuit has held repeatedly that New York's "borrowing statute," applies to an action for fraud based upon violations of the federal securities laws instituted in New York by a non-resident and that such an action accrues in the state of the plaintiff's residence. See, e.g., Armstrong v. McAlpin, supra 699 F.2d at 89; Industrial Consultants, Inc. v. H.S. Equities, Inc., supra, 646 F.2d at 747; Stafford v. International Harvester Co., 668 F.2d 142, 151 (2d Cir. 1981); Robertson v. Seidman & Seidman, 609 F.2d 583, 586-87 (2d Cir. 1979); Stull v. Bayard, supra, 561 F.2d at 431; Arneil v. Ramsey, supra, 550 F.2d, at 779-80; Sack v. Low, supra, 478 F.2d at 365-66. The New York courts are in accord. See e.g., Knieriemen v. Bache Halsey Stuart Shields, Inc., 74 A.D. 2d 290, 296, 427 N.Y.S.2d 10, 14 (1st Dept. 1980), appeals dismissed, 50 N.Y.2d 1021, 410 N.E.2d 745, 431 N.Y.S.2d 812 (1980); 51 N.Y.2d 970, 416 N.E.2d 1055, 435 N.Y.S.2d 720 (1980); Prefabco Inc. v. Olin Corp., 71 A.D.2d 587, 588, 418 N.Y.S.2d 432, 433 (1st Dept. 1979).
Plaintiff argues that these decisions are not controlling in this case, and that this Court should apply the six-year limitations period prescribed by N.Y. Civ. Prac. Law § 213(8). He contends that two of the agreements executed by the parties contain choice of law provisions which provide that New York law should govern. Plaintiff refers specifically to the "Customer's Margin Agreement," dated August 1, 1978, and the "Client's Option Agreement," dated October 20, 1978, each of which contain a clause providing that "[t]his agreement" shall be governed by the laws of the State of New York. According to plaintiff, these choice of law provisions nullify the effect of New York's "borrowing statute," and require this Court to apply the New York statute of limitations for common law fraud.
Regardless of whether these clauses, which are expressly applicable only to the particular agreements in which they are found, can be said to govern the entire relationship between the parties, it has been held in New York that a contractual choice of law provision governs only a cause of action sounding in contract. This very issue was addressed by the Appellate Division, First Department, in Knieriemen v. Bache Halsey Stuart Shields, Inc., supra, 74 A.D.2d at 293, 427 N.Y.S.2d at 12-13. In that case, the plaintiff, a resident of Louisiana, sued a New York brokerage firm to recover for alleged breaches of contract, negligence, fraud and churning in connection with plaintiff's commodity trading account. In determining that New York's "borrowing statute" applied to plaintiff's churning claim, the court rejected plaintiff's contention that the contractual provision selecting New York law as controlling mandated application of New York's statute of limitations. The court explained:
The customer's agreement that plaintiff signed with the defendant when their business relationship commenced recited that "[t]his contract shall be governed by the laws of the State of New York". Relying at least in part on this recitation the trial court held that New York law should apply to all of the causes of action. The defendant maintains that Louisiana law should have been applied to the tort causes of action.
That the parties agreed that their contract should be governed by an expressed procedure does not bind them as to causes of action sounding in tort (see Fantis Foods v. Standard Importing Co., 63 A.D.2d 52, 406 N.Y.S.2d 763 revd. on other grounds, 49 N.Y.2d 317, 425 N.Y.S.2d 783, 402 N.E.2d 122), and, as to the tort causes of action, there is no reason why all must be resolved by reference to the law of the same jurisdiction (Babcock v. Jackson, 12 N.Y.2d 473, 484, 240 N.Y.S.2d 743, 191 N.E.2d 279).
In the instant case, plaintiff is, and was at all times material to this action, a resident of Connecticut. Whatever losses he claims to have suffered as a result of defendants' alleged fraudulent activities were thus suffered in Connecticut. To the extent plaintiff became a poorer man, he became a poorer Connecticut resident. See Arneil v. Ramsey, supra, 550 F.2d at 780.Accordingly, this Court holds that plaintiff's fraud claims have accrued in Connecticut, and must be governed by the shorter of the New York or Connecticut statute of limitations. See N.Y. Civ. Prac. Law § 202.
As indicated above, the relevant New York statute of limitations prescribes a six-year limitations period for securities fraud actions such as plaintiff's. N.Y. Civ. Prac. Law § 213(8). Connecticut's limitations period for claims based on common law fraud is three years, Conn. Gen. Stat. § 52-577, and, thus, is the controlling limitations provision in this case.
In the instant cases, plaintiff's cause of action accrued no later than October 1979, when he closed his account at Lehman, more than three years before the filing of this lawsuit. Accordingly, plaintiff's claims for relief for securities fraud under section 10(b) and for common law fraud are time-barred pursuant to the three-year limitations period established by Connecticut law.
Plaintiff's cause of action against Lehman for "controlling person" liability under section 20(a) must also fall victim to Connecticut's statute of limitations. Liability under that section is "derivative liability in that it is predicated upon another person's violation of a different provision of the securities laws." Hill v. Equitable Trust Co., 562 F. Supp. 1324, 1341 (D. Del. 1983). Consequently, the statute of limitations that governs a claim under section 20(a) will be the same as the one applicable to the claim against the "controlled person." See id.; Herm v. Stafford, supra, 663 F.2d at 679.Accordingly, plaintiff's claim for relief pursuant to the federal securities laws and for common law fraud must be dismissed.
B. Claims Under NYSE Rule 405 and the NASD Rule
The Fifth and Sixth Claims for relief seek damages for violations of NYSE Rule 405, the so-called "suitability" rule;
and the NASD rule, the "know your customer" rule.
Lehman argues that these two claims must be dismissed because there is no private right of action under these rules. The Securities Exchange Act does not expressly authorize a private right of action for violations of either of these rules. Consequently, plaintiff's claims can survive this motion to dismiss only if he can demonstrate that a private right of action has been impliedly created under these rules. Plaintiff has failed to make such a showing.
The question of whether a statute creates a private cause of action "either expressly or by implication is basically a matter of statutory construction." Transamerica Mortgage Advisors, Inc. Lewis, 444 U.S. 11, 15, 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979). See also Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979); Cannon v. University of Chicago, 441 U.S. 677, 688, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979); National R.R. Passenger Corp. v. National Assoc. of R.R. Passengers, 414 U.S. 453, 458, 38 L. Ed. 2d 646, 94 S. Ct. 690 (1974); Siebert v. The Conservative Party of New York State, 724 F.2d 334, 337 (2d Cir. 1983). As these cases have made clear, the existence of an implied private right of action rises or falls with the question of legislative intent. Absent a finding that the particular statute or rule at issue was promulgated with the intention of creating the right of action asserted, the court may not imply such a right. See, e.g., Transamerica Mortgage Advisors v. Lewis, supra, 444 U.S. at 15-16; Touche Ross & Co. v. Redington, supra, 442 U.S. at 568; Cannon v. University of Chicago, supra, 441 U.S. 688.
In the instant case, plaintiff has offered this Court no basis upon which to conclude, contrary to substantial authority, that an implied right of action exists under NYSE Rule 405 or the NASD Rule. He has neither cited any authority in support of his contentions, nor addressed any of the arguments and precedents offered by Lehman in favor of the contrary result. In fact, this Court has been able to find no persuasive demonstration of congressional intent to create a federal right of action under the rules at issue.
On the contrary, the district court in Colman v. D.H. Blair & Co., Inc., 521 F. Supp. 646 (S.D.N.Y. 1981) listed the following factors which the court observed suggest the absence of such an intent:
(1) the statutory bases for the NYSE and NASD Rules, see 15 U.S.C. §§ 78f(b)(5) and (6) and 78o-3(b)(6) and (7), do not confer any rights or proscribe any conduct by exchange or association members;
(2) there is apparently no mention of this subject in the legislative history;
(3) there are several express provisions in the Act creating private remedies under specified circumstances, suggesting that the failure to provide for private actions for violation of exchange or association rules was not an oversight; and,
(4) the statutory scheme provides for self-regulation and enforcement by exchanges and associations, suggesting that Congress has selected this as the exclusive means of enforcement.
521 F. Supp. at 654 (citations omitted).
Accordingly, this Court holds that plaintiff may not maintain an action for defendants' alleged violations of NYSE Rule 405 and the NASD Rule, and that the Fifth and Sixth Claims for Relief must also be dismissed.
C. The Third Claim for Relief
Plaintiff's Third Claim for Relief raises more troubling factual questions and legal issues. That claim alleges that defendants breached certain contractual obligations to plaintiff. Paragraph 21 of the complaint sets forth the specifics of this cause of action:
Pursuant to the agreement entered into by plaintiff and Lehman Brothers, Lehman Brothers incurred a contractual obligation to plaintiff to (i) act with due care and diligence with respect to plaintiff's account; (ii) to supervise its employees working on plaintiff's account and insure that they acted in plaintiff's best interests; and (iii) act in good faith towards plaintiff.
Plaintiff contends that this claim is premised upon two distinct contractual obligations. Citing Duker v. Duker, 6 S.E.C. 386 (1939), plaintiff argues that defendants had been engaged by contract to act on behalf of plaintiff, and that inherent in this relationship was defendants' obligation to treat plaintiff fairly and to act toward him in good faith. Plaintiff asserts that, as a result of his relationship with defendants, defendants were subject to a second contractual obligation to act with due care. Included in this second duty, according to plaintiff, was Lehman's duty to properly supervise its employees. Because these duties allegedly originated from and circumscribed the contractual relationship between the parties, plaintiff contends that this claim is subject to New York's six-year statute of limitations "for an action upon a contractual obligation or liability express or implied." N.Y. Civ. Prac. Law § 213(2).
Lehman counters with the position that the Third Claim for Relief should be dismissed for failure to state a remediable claim because the parties never entered into any agreement establishing the contractual duties of good faith or due care and proper supervision. Rather, Lehman argues this claim merely rephrases in the language of contractual breach plaintiff's churning claim, which this Court has determined is time-barred. Alternatively, Lehman contends, this "contract" claim actually pleads a cause of action sounding in tort for failure to exercise due care in rendering professional services, and, thus, is barred by the three-year statute of limitations for negligence or professional malpractice. N.Y. Civ. Prac. Law § 214(4), (6).
By casting the Third Claim for Relief in the language of contractual breach, plaintiff attempts to bring his cause of action within the six-year statute of limitations applicable to claims based on a contract. Lehman argues that this effort must fail because it is well-settled under New York law that a plaintiff can have but one recovery for a wrong, and thus "it is the gravamen or essence of the causes of action that determines the applicable Statute of Limitations." European Am. Bank v. Cain, 79 A.D.2d 158, 162, 436 N.Y.S.2d 318, 320-21 (2d Dept. 1981). In the instant case, Lehman continues, the essence of plaintiff's cause of action is securities fraud, and thus, the limitations period applicable to all of plaintiff's claims should be the three-year period provided in Conn. Gen. Stat. § 52-577. Moreover, Lehman argues, even if this Court finds that the relationship between plaintiff and defendants was defined by contract, the Connecticut statute of limitations for common law fraud nevertheless applies because the duties allegedly breached are imposed by law rather than by contract. According to Lehman, under New York law, when a contract simply incorporates preexisting obligations independent of the contract, a court must apply the statute of limitations applicable to the "true nature" of the cause of action. Relying on Adler & Topal, P.C. v. Exclusive Envelope Corp., 84 A.D.2d 365, 446 N.Y.S.2d 337 (2d Dept. 1982) and Fund of Funds, Ltd. v. Arthur Andersen & Co., 545 F. Supp. 1314 (S.D.N.Y. 1982), Lehman asserts that only when the duties at issue are expressly contained in the contract may a separate claim for breach of contract lie. Nominal contract actions grounded upon the breach of an agreement to properly perform professional services are subject to the three-year statute of limitations for actions based upon negligence or professional malpractice.
Historically, the New York courts have applied the "essence of the action" rule to resolve conflicts between the torts and contracts statutes of limitations. See, e.g., Fund of Funds, Ltd. v. Arthur Andersen & Co., supra 545 F. Supp. at 1363; Union Bank of Switz, v. HS Equities, Inc., 423 F. Supp. 927, 929 (S.D.N.Y. 1976); Western Elec. Co. v. Brenner, 41 N.Y.2d 291, 293-94, 360 N.Ed.2d 1091, 1093, 392 N.Y.S.2d 409, 410-11 (1977); Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902, 904 (1937); Corash v. Texas Co., 264 A.D. 292, 295, 35 N.Y.S.2d 334, 338 (1st Dept. 1942). However, recently, the New York Court of Appeals has advocated blanket application of this rule only in personal injury cases, and has recognized that different policy considerations are involved in actions for damage to property or pecuniary interests. See Sears, Roebuck & Co. v. Enco Assoc., Inc., 43 N.Y.2d 389, 372 N.E.2d 555, 401 N.Y.S.2d 767 (1977); Matter of Paver & Wildfoerster (Catholic High School Assn.), 38 N.Y.2d 669, 345 N.E.2d 565, 382 N.Y.S.2d 22 (1976).
In Sears, Roebuck & Co. v. Enco Assoc., Inc., supra, a firm of architects contracted with the plaintiff to design plans for and supervise construction of parking ramps at one of the plaintiff's stores. After cracks appeared in the ramps, the plaintiff sued the architects for negligence, breach of implied warranty and breach of a contractual obligation to exercise proper professional care. The lower courts granted defendant's motion to dismiss the action as untimely, concluding that the claims for breach of contract and warranty actually alleged a cause of action for professional malpractice and were barred by the applicable three-year statute of limitations. The New York Court of Appeals reversed and applied the six-year limitations period for breach of contract actions, although it limited damages to the contract measure of recovery. The court held that when a plaintiff complains of damage to his property or pecuniary interests, the contract period of limitations governs regardless of how the asserted liability is classified or described, as long as "all liability alleged in th[e] complaint had its genesis in the contractual relationship of the parties." Id., 43 N.Y.2d at 396, 372 N.E.2d at 558, 401 N.Y.S.2d at 771 (citations omitted).
The significance of this holding was made more explicit in Video Corp. of Am. v. Frederick Flatto Assoc., Inc., 58 N.Y.2d 1026, 448 N.E.2d 1350, 462 N.Y.S.2d 439 (1983), in which an insurance broker was sued on negligence and breach of contract theories for failure to procure adequate insurance coverage. Although the case involved no written contract, the court declared that "an action for failure to exercise due care in the performance of a contract insofar as it seeks recovery for damages to property or pecuniary interests recoverable in a contract action is governed by the six-year contract Statute of Limitations (CPLR 213, Subd. 2)." Id. In Video Corp., the Court of Appeals expressly rejected the restrictive manner in which three departments of the Appellate Division had interpreted Sears. All three cases had concluded that the Sears holding applied to only written contracts containing explicit promises to achieve a specific result. See Brainard v. Brown, 91 A.D.2d 287, 458 N.Y.S.2d 735 (3d Dept. 1983); Video Corp. of Am. v. Frederick Flatto Assoc., Inc., 85 A.D.2d 448, 448 N.Y.S.2d 498 (1st Dept. 1982); Adler & Topal, P.C. v. Exclusive Envelope Corp., 84 A.D.2d 365, 446 N.Y.S.2d 337 (2d Dept. 1982).
In the most recently reported application of the Sears and Video Corp. holdings, Baratta v. Kozlowski, 94 A.D.2d 454, 464 N.Y.S.2d 803 (2d Dept. 1983), the plaintiff sued a bank, the bank's holding company and the bank's president for damages resulting from the embezzlement by the bank's president of bonds invested with the bank by the plaintiff. Asserting that the "essence" of the plaintiff's action sounded in tort, the defendants moved to dismiss the complaint, which included claims based upon both tort and contract theories of recovery, on the ground that the statute of limitations applicable to tort claims had expired prior to the institution of the lawsuit. Relying on the holdings in Sears and Video Corp., the court held that the "essence of the action" rule does not control where the claim alleges damages to pecuniary interests.
The court concluded that the complaint sufficiently alleged the creation of bailment contract between the parties, and that the statute of limitations for contract actions applied. As the court explained:
Since the claimed damage is to property or pecuniary interests and the asserted liability not only relates in part to an alleged failure to use due care, but also "had its genesis in the contractual relationship of the parties" (Sears, Roebuck v. Enco Assoc., 43 N.Y.2d 389, 396, 401 N.Y.S.2d 767, 372 N.E.2d 555, supra), application of the six-year Statute of Limitations to the claims against the Bank is mandated by Sears and Video Corp.
Barratta v. Kozlowski, surpa, 94 A.D.2d at 463, 464 N.Y.S.2d at 809. However, as in Sears, the plaintiff was limited to the contract measure of damages.
In the instant case, plaintiff seeks damages for injury to this pecuniary interests. He alleges that such damages resulted from defendants' failure to act with due care and that such duty had its genesis in the contractual relationship between the parties. Upon this pleading, this claim for relief is subject to the six-year statute of limitations applicable to breach of contract claims in New York. See Video Corp. of Am. v. Frederick Flatto Assoc., Inc., supra, 58 N.Y.2d 1062, 448 N.E.2d 1350, 462 N.Y.S.2d 439; Sears, Roebuck & Co. v. Enco Assoc., Inc., supra, 43 N.Y.2d 389, 372 N.E.2d 555, 401 N.Y.S.2d 767; Barratta v. Kozlowski, supra, 94 A.D.2d 454, 464 N.Y.S.2d 803.
Lehman asserts that this claim cannot stand because no such contract existed and, therefore, that defendants breached no contractual duties to plaintiff. However, because Lehman raises this argument on a motion to dismiss the complaint, this Court must "accept as true all material factual allegations of the complaint and construe its terms in favor of the plaintiff." County of Suffolk v. Long Island Lighting Co., 728 F.2d 52, slip op. at 1284 (2d Cir. 1984); see also Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). This construction of the pleadings must control even if this Court were to conclude that the possibility of recovery on plaintiff's Third Claim for Relief is remote.
After construing the contract claim in this manner, this Court cannot conclude that "it appears beyond doubt that the plaintiff can prove no set of facts in support of [t]his claim which will entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (footnote omitted). Accordingly, this claim may not be dismissed at this time. However to ultimately succeed on this claim, plaintiff will have to establish both that the alleged contractual relationship existed between the parties and that "all liability alleged in [the] complaint had its genesis in" this relationship. Sears, Roebuck & Co. v. Enco Assoc., Inc., supra, 43 N.Y.2d at 396, 372 N.E.2d at 558, 401 N.Y.S.2d at 771-72. Of course, if plaintiff prevails on this claim, his recovery will be limited to the contract measure of damages. See id.; Baratta v. Kozlowski, supra 94 A.D.2d at 463, 464 N.Y.S.2d at 809.
D. The Municipal Bonds Claim
Plaintiff's Seventh Claim for Relief alleges that the parties entered into a contract for the exchange of plaintif's tax-free municipal bonds which were valued at approximately $350,000.00. The complaint asserts that defendants convinced plaintiff to deliver the bonds to them for the express purpose of exchanging the bonds for bonds which were similar but which yielded a greater return. Paragraph 39 of the Complaint alleges that "[d]efendants breached the agreement entered into by the parties concerning the bonds, by using the bonds as collateral for margin coverage." Recognizing that this claim may be less than clear, plaintiff offers the following explanation:
[The Seventh Claim for Relief] alleges that defendants breached their contractual undertaking (i) to exchange plaintiff's municipal bonds for like quality bonds yielding a higher return and (ii) to maintain the bonds safely, so that they could help finance plaintiff's retirement. Rather than carrying out that agreement, defendants used the bonds as collateral for margin coverage.
[Plaintiff's] Reply Memorandum in Opposition to [Defendant's] Motion to Dismiss at 4 (Sept. 26, 1983).
Lehman argues that this claim should be dismissed for failure to state a remediable cause of action for several independent reasons. First, as Lehman interprets this claim, it alleges that plaintiff's tax-free municipal bonds were improperly made subject to margin coverage and were ultimately liquidated as collateral, resulting in a loss to plaintiff. Lehman contends that such allegations do not sound in contract, but, rather, assert only a cause of action in tort for failure to exercise due care in managing plaintiff's account. Accordingly, Lehman maintains, this claim is barred by the three-year statute of limitations applicable to negligence or malpractice actions.
Alternatively, Lehman argues that even if this claim sufficiently alleges the existence of a contract for the exchange and safe keeping of plaintiff's bonds, that agreement constitutes an oral modification of the Customer's Margin Agreement executed by the parties. However, this argument continues, such oral modifications are void by reason of both the parole evidence rule and the express provision in the Customer's Margin Agreement limiting modifications of that agreement to signed writings.
In response, plaintiff argues that the Seventh Claim for Relief alleges the existence of a contract for the exchange of plaintiff's bonds, independent of the alleged agreement pursuant to which defendants were to effect securities and options trades on plaintiff's behalf. Plaintiff contends that, rather than merely rephrasing in contract terms a tort cause of action for failure to exercise due care, this claim presents a separate claim for a specific breach of contract. Consequently, plaintiff asserts, this claim is subject to the six-year limitations period applicable to claims for breach of contract. See N.Y. Civ. Prac. Law § 213(2).
Additionally, plaintiff maintains, this claim is not barred by the parole evidence rule or the provisions of the Customer's Margin Agreement. The parole evidence rule applies only to prior or contemporaneous understandings which alter an integrated written agreement. However, plaintiff asserts, the parties executed the bond exchange contract after plaintiff opened his trading accounts with defendants. Moreover, plaintiff contends that the bond exchange contract did not refer to an was in no way connected with these trading accounts. In short, plaintiff argues that the alleged bond exchange agreement neither modifies nor contradicts any agreements made with respect to plaintiff's trades, and thus is not barred by the terms of such agreements or the parole evidence rule.
This Court holds, as it did with respect to the Third Claim for Relief, that to the extent that plaintiff's Seventh Claim for Relief alleges the existence of a separate contract for the exchange of tax-free municipal bonds, any claims for breach of such contract are subject to a six-year statute of limitations. However, to succeed upon this claim, plaintiff must establish both that defendants breached their obligations under this contract and that claims based on these obligations are not barred by the parole evidence rule or by the terms of prior agreements executed by the parties. At this preliminary stage of litigation, this Court is unwilling to conclude that it is "beyond doubt" that plaintiff cannot sustain this burden. Conley v. Gibson, supra, 355 U.S. at 45-46. See also Scheuer v. Rhodes, supra, 416 U.S. at 236.Accordingly, this Court may not dismiss plaintiff's Seventh Claim for Relief.
To summarize, plaintiff's First, Second and Fourth Claims for Relief seeking damages for violations of section 10(b) and 20(a) and for common law fraud, respectively, were not filed before the expiration of the applicable statute of limitations, and are hereby dismissed. Plaintiff's Fifth and Sixth Claims for Relief praying for damages for violations of NYSE Rule 405 and the NASD Rule fail to state a claim for which a private right of action exists, and they too are dismissed. The Third and Seventh Claims for Relief alleging breaches of several contractual obligations are subject to a six-year limitations period. These latter two causes of action present claims upon which relief may conceivably be granted, and they are not dismissed.
Accordingly, Lehman's motion to dismiss the complaint is granted insofar as it relates to the First, Second, Fourth, Fifth and Sixth claims for relief. In all other respects Lehman's motion is denied.
Lehman is directed to file its answer within ten (10) days of the date of this decision. Discovery in this action is to be completed by May 31, 1984 and a joint pre-trial order to be filed by the parties by June 28, 1984.
It is so ordered.