nature of, the investment, and they set out the commission that would be earned on each investment. Yet, plaintiff did not commence this action until February 4, 1992, more than one year after she purchased the securities, and, more than one year after she received the prospectuses and signed the disclosure statements.
Claims brought under section 12(2) of the 1933 Act, section 10(b) of the 1934 Act, and rule 10b-5 are governed by a one-year/three-year limitations period. 15 U.S.C. § 77m (1933 Act);
Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 115 L. Ed. 2d 321, 111 S. Ct. 2773 (1991).
Defendants contend that plaintiff's claims are time-barred under the one-year limitations period, because she commenced this action more than one-year after she reasonably could have discovered the alleged fraud. Plaintiff, defendants argue, possessed enough information, and could have, through the exercise of reasonable diligence, discovered the fraud when she received the prospectuses and signed the disclosure statements.
In response, plaintiff contends that because she is a naive and innocent investor, mere receipt of the prospectuses did not cause the limitations period to accrue. "Discovery takes place at different times," she argues, "depending upon the specific nature, sophistication and characteristics of the investor." Plaintiff's Memorandum of Law in Opposition to Motion to Dismiss Amended Complaint ("Plaintiff's Mem.) at 6. In addition, relying principally on Werner v. Satterlee, Stephens, Burke & Burke, 797 F. Supp. 1196, 1204 (S.D.N.Y. 1992) and Hauman v. Illinois Power Company, Fed.Sec.L.Rep. (CCH) P 96,882, at 93,606 (C.D.Ill. August 29, 1991), plaintiff contends that an investor is not required to exercise reasonable diligence to uncover fraudulent conduct under section 10(b) and rule 10b-5, because the one-year limitations period prescribed by Lampf accrues only upon actual discovery of the fraud.
I am not persuaded by plaintiff's arguments. Plaintiff could have, by the exercise of reasonable diligence, discovered the alleged fraud more than one year before she commenced this action. Consequently, her claims under the 1933 Act and the 1934 Act are time-barred under the one-year limitations period.
"The test as to when fraud should with reasonable diligence have been discovered is an objective one." Armstrong v. McAlpin, 699 F.2d 79, 88 (2d Cir. 1983). "'Where the circumstances are such as to suggest to a person of ordinary intelligence the probability that he has been defrauded, a duty of inquiry arises, and if he omits that inquiry when it would have developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of the fraud will be imputed to him.'" Id. (quoting Higgins v. Crouse, 147 N.Y. 411, 416, 42 N.E. 6 (1895)); Arneil v. Ramsey, 550 F.2d 774, 780 (2d Cir. 1977). This is true whether the claim is one under section 12(2) of the 1933 Act, section 10(b) of the 1934 Act, or rule 10b-5. See Anixter v. Home-Stake Production Co., 939 F.2d 1420, 1441-42 (10th Cir. 1991) ("Anixter I"), vacated on other grounds and remanded sub nom. Dennler v. Trippet, 118 L. Ed. 2d 382, 112 S. Ct. 1658 (1992); accord Mittendorf v. J.R. Williston & Beane Inc., 372 F. Supp. 821, 832 (S.D.N.Y. 1974).
Thus, the relevant inquiry here is when was plaintiff in possession of sufficient information to place her on notice, whether actual notice or inquiry, that she may have been defrauded. See, e.g. Anixter, 939 F.2d at 1437 ("Notice is the key to our analysis, and merely 'inquiry notice' will do."); DeBruyne v. Equitable Life Assur. Soc. of the U.S., 920 F.2d 457, 466 (7th Cir. 1990) ("the one year limitations period begins to run even when a plaintiff is placed on 'inquiry notice' of possible misrepresentation"); Davidson v. Wilson, 973 F.2d 1391, 1402 (8th Cir. 1992) (limitations period begins to run even when plaintiff is only on inquiry notice).
A review of the amended complaint reveals that plaintiff, by the exercise of reasonable diligence, should have been on inquiry notice of the alleged fraud when she received the prospectuses on the five limited partnerships, and signed the subscription agreements and disclosure statements. "Inquiry notice is triggered by evidence of the possibility of fraud, not full exposition of the scam itself." Kennedy v. Josephthal & Co., Inc., 814 F.2d 798, 802 (1st Cir. 1987). "The statute runs from the time at which plaintiff should have discovered the general fraudulent scheme." Arneil, 550 F.2d at 780 (quoting Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 410 (2d Cir. 1975)). It does not await her "leisurely discovery of the full details of the alleged scheme." Id.
The offering materials explain much of the information that plaintiff contends Palumbos neglected to tell her; they set out the commissions that would be earned from each investment, Amended Complaint at P 40(H), and the relevant risk factors, suitability requirements, and liquidity of each limited partnership.
For example, the TFSI prospectus states on page three that "investment in the Partnership is suitable only for investors of adequate financial means who have no need for liquidity with respect to this investment. Palumbos Aff., Ex. A. On page eight, the prospectus warns that "prospective investors should carefully consider the risks that are described below . . . ," id. and it later describes the various risks.
Additionally, the PLM prospectus states on its cover that "there is no public market for the units and none is expected to develop." Palumbos Aff., Ex. E. It goes on to warn that "this offering involves certain risk factors and substantial fees to the general partner and affiliates." Id.
The remaining prospectuses also warn, to varying degrees, of the risk involved in the investment, the illiquid nature of the investment, and the lack of a public market for the units in the limited partnership.
These warnings were sufficient to place an investor of ordinary intelligence, such as plaintiff, on inquiry notice of the alleged fraud. See Koke v. Stifel, Nicolaus & Co., Inc., 620 F.2d 1340, 1343-44 (8th Cir. 1980); Kennedy, 814 F.2d at 802-03. But see Luksch v. Latham, 675 F. Supp. 1198 (N.D.Cal. 1987). Plaintiff's claim that she did not read or understand the offering material is unavailing. Plaintiff "cannot avoid the statute of limitations by possessing, but failing to read, the documents that would put [her] on inquiry notice." DeBruyne, 920 F.2d at 466 n. 18. A plaintiff is not free to ignore pertinent documents even if she is not able to fully understand their meaning. Koke, 620 F.2d at 1343-44 (even if plaintiff thought monthly account statements looked like "hieroglyphics," she was not free to ignore them). An investor is obligated to read the prospectus or other offering material or have someone explain it to her. See Marlow v. Gold, Fed.Sec.L.Rep. (CCH) P 96,112, at 90634 (S.D.N.Y. June 6, 1991). By failing to read the offering material, an investor proceeds at her peril.
Moreover, plaintiff should have been alerted to the possibility of fraud when she signed the disclosure statements. The disclosure statements, in contrast to the long descriptions in the prospectuses, are short one-page outlines of the special risks involved in investing in the partnerships. For example, the TFSI disclosure form states: "I fully understand the illiquid nature of an investment in Secured Investors III [TFSI]. I recognize the risks that such illiquidity entails . . ." The Krupp disclosure statement contains this disclaimer: "I fully understand the illiquid nature of an investment in KRUPP CASH PLUS-V and that no secondary market is likely to exist for limited partnership units." Palumbos Aff., Ex. D. The PLM disclosure form contains a similar disclaimer, and notes that "this document only supplements, and in no way replaces the prospectus; investors should review the prospectus closely in order to determine the appropriateness of this investment." Id., Ex. F. It also states that the "program involves special risks in terms of valuation and liquidity for the qualified and IRA plan investor." Id. The Berry & Boyle disclosure form contains similar warnings.
These documents indicate clearly that the limited partnerships were not liquid and entailed risks, claims plaintiff now raises. Therefore, when plaintiff signed these documents it triggered a duty of inquiry on her part. See Topalian v. Ehrman, 954 F.2d 1125, 1132-34 (5th Cir.) (signing of subscription agreement triggered reason to exercise due diligence), cert. denied, 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992). The amended complaint contains no allegation that defendants attempted to conceal the essential facts from plaintiff. On the contrary, the complaint expresses clearly that defendants gave plaintiff all the information necessary for her to make an informed decision, but that plaintiff failed to peruse the information because she could not understand it. This case is, therefore, distinguishable from McCoy v. Goldberg, 748 F. Supp. 146 (S.D.N.Y. 1990),
a case on which plaintiff relies. Plaintiff attempts to escape the requirement the she exercise reasonable diligence by contending that the Supreme Court's decision in Lampf eliminated the objective reasonable diligence standard and substituted in its place a requirement of actual discovery in section 10(b) actions. Plaintiff relies on the Court's statement that "the 1-year period, by its terms, begins after discovery of the facts constituting the violation, making tolling unnecessary," Lampf, 111 S. Ct. at 2782, and the footnote that states that the governing standard for an action under § 10(b) will be the language of § 9(e) of the 1934 Act, 15 U.S.C. § 78i(e). Id. n.9.
I disagree with plaintiff's interpretation of Lampf. Courts have long interpreted the term "discovery" to include a requirement of diligence by the defrauded party. For example, the Fifth Circuit, in interpreting the term "discovery" in the statute of limitations provided for in section 29 of the 1934 Act,
'Discovery" within the meaning of the statute, 15 U.S.C.A. § 78cc(b), quoted in footnote 2, supra, is to be determined we think, according to an objective standard; that is, 'discovery' means either actual knowledge or notice of facts which, in the exercise of due diligence, would have led to actual knowledge of the violation.
Goldenberg v. Bache and Company, 270 F.2d 675, 681 (5th Cir. 1959) (citing Holmberg v. Armbrecht, 327 U.S. 392, 397, 90 L. Ed. 743, 66 S. Ct. 582 (1946)). The obligation to exercise reasonable diligence is also an essential element of the discovery rule,
and is the basis for the objective approach to deciding when the statute of limitation in a securities fraud action accrues. See Holmberg, 327 U.S. at 397 (reasonable diligence standard); Goldenberg, 270 F.2d at 681 (discovery is to be determined by an objective standard); Mittendorf, 372 F. Supp. at 832 (the objective approach has been uniformly applied by Courts in actions brought under both the 1933 and 1934 Securities Acts).
The Court's holding in Lampf did not alter this requirement of reasonable diligence. In establishing a uniform statute of limitations the Court stated only that the one-year limitations period begins to run "after discovery of the facts constituting the violation." It did not eliminate the long-standing requirement that a plaintiff exercise reasonable diligence to uncover the fraud. Anixter v. Home-Stake Production Co., 947 F.2d 897, 899 (10th Cir. 1991) ("Anixter II"), vacated on other grounds and remanded sub nom., Dennler v. Trippet, 118 L. Ed. 2d 382, 112 S. Ct. 1658 (1992). But see Werner, 797 F. Supp. at 1204; Hauman, Fed.Sec.L.Rep. P 96,882 at 93,606.
When the Court selected § 9(e), it did not necessarily indicate a preference for the type of notice of the violation but sought a 'governing' standard to link the implied § 10(b) remedy to those express securities causes of action which uniformly require one year after notice of the violation and not more than three years after the violation.
Anixter, 947 F.2d at 899 (footnote omitted). Absent a clear indication from the Court that section 10(b) and rule 10b-5 cases are now to be governed by an actual discovery standard, I find that section 10(b) plaintiffs are still required to exercise reasonable diligence to uncover the fraud, and that a failure to do so will result in imputing to them the information that the exercise of reasonable diligence would have uncovered.
Additionally, the Second Circuit's recent interpretation in Henley v. Slone, 961 F.2d 23, 24 (2d Cir. 1992) of the uniform statute of limitations it adopted in Ceres Partners v. GEL Associates, 918 F.2d 349 (2d Cir. 1990) suggests strongly that the Second Circuit would interpret section 9(e) of the 1934 Act to include a reasonable diligence standard. In Lampf, the Supreme Court stated that the language of section 9(e) of the 1934 Act would provide the governing standard for actions under section 10(b). 111 S. Ct. at 2782 n.9. In Ceres, the Second Circuit relied, in part, on section 9(e) in its decision to adopt the one-year/three-year limitations period. Recently, in Henley, the Second Circuit noted that in Ceres "we announced a uniform limitations period of the earlier of one year from the date the fraud was or reasonably would have been discovered or three years from the date of the transaction . . .". Henley, 961 F.2d at 24 (emphasis added). Thus, read together Henley and Ceres suggest strongly that the Second Circuit has interpreted section 9(e) of the 1934 Act to include a reasonable diligence requirement. Cf. In re: General Development Corp. Bond Lit., 800 F. Supp. 1128, 1992 U.S. Dist. LEXIS 10245 *18-9 (S.D.N.Y. 1992) (under the Henley court's recapitulation of the Ceres rule, courts must consider in section 10(b) actions whether plaintiff should have been alerted to fraud upon receipt of prospectus and other documents).
For the reasons discussed above, I find that plaintiff's federal securities claims under the 1933 and 1934 Acts, which were filed more than one and a half years after plaintiff could have, by the exercise of reasonable diligence, discovered the alleged fraud, are untimely. Although questions of due diligence and constructive knowledge often turn on resolving the disputed facts of a particular case, Robertson v. Seidman & Seidman, 609 F.2d 583, 591 (2d Cir. 1979), this action falls within the small category of cases in which it can be said that plaintiff, as a matter of law, should have discovered the alleged fraud more than one year before she commenced the action. See Davidson, 973 F.2d at 1401-02. Accordingly, plaintiff's claims under section 12(2) of the 1933 Act, section 10(b) of the 1934 Act, and rule 10b-5 -- counts one and three -- are dismissed under Rule 12(b)(6), Fed.R.Civ.P., as time-barred under the one-year limitations period.
In addition, plaintiff's claims alleging control person, and aider and abettor liability -- counts two and four -- are also dismissed as time-barred. See Herm v. Stafford, 663 F.2d 669, 679 (6th Cir. 1981) (claims alleging control person liability are governed by same limitations period as primary claims of securities fraud); Schwartz v. Michaels, No. 91-3538, 1992 U.S. Dist. LEXIS 11321, at *52 (S.D.N.Y. July 23, 1992) (limitations period for aiding and abetting liability under section 10(b) is the same as that for primary violation).
III. The Pendent State Claims
Jurisdiction over plaintiff's state law claims for breach of fiduciary duty, common law fraud, negligent misrepresentation, and violation of § 349 of the General Business Law of the State of New York are all based solely on pendent jurisdiction; there is no independent source Of federal jurisdiction. Because all of the federal claims have been dismissed, I decline to retain jurisdiction over the state law claims. Accordingly, Counts five through eleven are dismissed, without prejudice, for lack of subject matter jurisdiction.
IV. Leave to Replead
Plaintiff has moved for leave to file a second amended complaint if her amended complaint is dismissed. Because plaintiff's federal securities law claims are dismissed as time-barred, and her state law claims are dismissed without prejudice, there is no basis to allow plaintiff to replead. Amendment of the complaint will not cure its defects. Consequently, plaintiff's motion is denied.
For the reasons set forth above, defendants' motion to dismiss the amended complaint is granted, and the complaint is dismissed. Plaintiff's motion to amend the complaint is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
December 15, 1992.