The opinion of the court was delivered by: Sweet, District Judge.
Defendant Donaldson Lufkin & Jenrette Securities Corporation
("DLJ") has moved for reconsideration of this Court's summary judgment
opinion in ABF Capital Mgmt. v. Askin Capital Mgmt., No. 96 Civ. 2978 (the
"ABF Action") and Primavera Familienstiftung v. Askin, No. 95 Div. 8905
(the "Primavera Action") (the "Summary Judgment Opinion"),*fn1 and for
an order granting summary judgment for DLJ against plaintiffs Lionel
("Sterling"), The Demeter Trust (the "Demeter Trust"), Global Hedge Fund
("Global"). and Providian Life and Health Insurance Company ("Providian")
(collectively, the "Time-Barred Plaintiffs") on statute of limitations
grounds, and against plaintiffs ABF Capital Management, CoriFrance, FIDR
Investors, Glenwood Partners, Hedged Investment Partners, Hubert Looser,
HNM First Investors Trust, International Asset Management, L.H. Rich
Companies, Montpellier Resources Limited, Nemrod Leveraged Holdings
Limited, Samta Investments Inc., SDI Ind., Spirit Debt Limited, and
William Monaghan (collectively, the "Quartz Plaintiffs") on the ground
that these plaintiffs cannot meet their burden at trial with respect to
their claim against DLJ for aiding and abetting a fraud involving the
Quartz Hedge Fund ("Quartz"). For the reasons set forth below, the motion
is granted in part and denied in part.
The parties to the ABF and Primavera Actions are set forth in ABF
Capital Mgmt. v. Askin Capital Mgmt.,L.P., 957 F. Supp. 1308 (S.D.N.Y.
1997) and Prmivera Familienstiftung v. Askin, 178 F.R.D. 405 (S.D.N.Y.
1998), familiarity with which is presumed.
The Summary Judgment Opinion inter alia granted summary judgment for
defendant Kidder Peabody & Co., Inc. ("Kidder") against the
Time-Barred Plaintiffs and the Quartz Plaintiffs. See Primavera
Familienstiftung v. Askin, 130 F. Supp.2d 450 (S.D.N.Y. 2001).
In DLJ's Memorandum of Law In Support of Summary Judgment (the "DLJ SJ
Brief") in the Investor Actions, DLJ stated that "[c]ertain arguments
advanced by Kidder [in its motion for summary judgment in the same
actions] apply with equal force to the claims against DLJ and are adopted
herein," (DLJ Mem. at 56), and discussed specific arguments put forth by
Kidder which DLJ adopted (id. at 56-59). Subsequently, in a letter to the
Court of May 26, 2000 (the "May 26 Letter"), DLJ stated that it wished
"to clarify" that "to the extent applicable" it was joining in each of
Kidder's summary judgment motions in the Investor Actions, and
specifically identified Kidder's Motion for Summary Judgment Dismissing
the Claims of Certain Plaintiffs as Time-Barred (the "Statute of
Limitations Motion") and Kidder's Motion for Summary Judgment Dismissing
the Claims of the Quartz Plaintiffs (the "Quartz Motion").*fn2
The plaintiffs in the ABF Action (the "ABF Plaintiffs"), in their
Memorandum of Law In Opposition To the Brokers' Motions For Summary
Judgment (the "ABF Plaintiffs' Brief") in the Investor Actions, noted
that "Kidder alone singles out the plaintiffs who invested in Quartz,"
(ABF Plaintiffs' Brief at 167), and raised certain arguments as to why
Kidder was not entitled to summary judgment against the Quartz Plaintiffs
(id. at 167-68). The plaintiffs in the Primavera Action (the "Primavera
Plaintiffs") separately submitted a notice of joinder as to the ABF
Plaintiffs' Brief as to all arguments made in that brief.
The holding that Providian's claim is time-barred was based on the
finding that Providian is located in Pennsylvania and, therefore, that
the two-year Pennsylvania statute of limitations applies. See Primavera,
at 517-19. In DLJ's Rule 56.1 statement, DLJ stated as an undisputed fact
that Providian is located in Louisville, Kentucky.
On February 22, 2001, DLJ filed the instant motion for
reconsideration, which pertains to the ABF Action and the Primavera
Action. The ABF Plaintiffs submitted an opposition brief; and the
Primavera Plaintiffs submitted a notice of joinder in the ABF Plaintiffs'
opposition. The matter was marked fully submitted on March 28, 2001.
I. The Standard Under Local Rule 6.3
Local Rule 6.3 provides in pertinent part: "There shall be served with
the notice of motion a memorandum setting forth concisely the matters or
controlling decisions which counsel believes the court has overlooked."
Local Civ. R. 6.3. Thus. to be entitled to reargument and
reconsideration, the movant must demonstrate that the Court overlooked
controlling decisions or factual matters that were put before it on the
underlying motion. See Ameritrust Co. Nat'l Ass'n v. ...