The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
This is an action, principally for alleged accounting malpractice,
against PriceWaterhouseCoopers ("PwC"), which has moved to dismiss the
second amended complaint for failure to state a claim upon which relief
may be granted. Without disregarding other aspects of the motion, its
crux includes contentions that
As shown by the engagement letter, the accounting
engagement which forms the predicate of the first
cause of action actually was with PwC Hong Kong, a
related but separate firm that has not been sued
here. The Hong Kong firm's written report does not
say what the complaint says it said. The first cause
of action in any case is barred by a contractual
limitations period contained in the engagement
The written business integration agreement upon
which the second cause of action is based did not
call for PwC to render the services, the alleged
failure to render which is said to have constituted
a breach of that contract.
The third cause of action likewise depends upon the
terms of yet another engagement letter.
The relevant engagement letters, as well as certain other documents,
probably could be considered in any event on a motion to dismiss the
complaint under San Leandro Emergency Med. Group Profit Sharing Plan
v. Philip Morris Cos., 75 F.3d 801, 809 (2d Cir. 1996), and cases to
similar effect. Nevertheless, in an abundance of caution, the Court, by
order dated December 22, 2003, advised counsel that it intended to
consider the three engagement letters (Young Aff. Ex. 5-7) and, to that
limited extent, might convert the motion into one for summary judgment.
It required that "any evidence that they contend raise a genuine issue of material fact
with respect to the authenticity or terms of the relevant engagements "
be submitted no later than January 8, 2004, (Emphasis added)
In response to that order, plaintiffs' counsel has submitted:
(a) A 60-page, single spaced so-called "Preliminary Statement of
Disputed Material Facts" which neither was sought nor permitted by the
December 22, 2003 order,
(b) A 13-page Rule 56(f) affidavit that argues that plaintiffs need
discovery issues of fact on a great variety of subjects involving the
merits but that does not appear to contend that discovery is needed on
the one limited respect in which the Court may convert the motion into
one for summary judgment "the authenticity or terms of the relevant
(c) 80 exhibits and an authenticating affidavit that, piled one atop
the other, are over 11 inches thick.
(d) A motion to permit supplementation of plaintiff's December 8, 2003
memorandum of law and the foregoing submissions or, alternatively for
leave to amend the second amended complaint and a memorandum of law in
support of that motion. This motion deals only with evidence directed to
the merits. There appears to be nothing in it relating to whether there
is a genuine issue of fact as to "the authenticity or terms of the
This is an egregious abuse. The principal motion before the Court is
addressed to the face of the complaint and, perhaps, to documents
effectively incorporated by reference therein, the authenticity of which
is not disputed. Plaintiffs' counsel has used the December 22 order as an
excuse to inundate the Court with masses of paper immaterial to the
limited issues before it. This is intolerable and, should it recur, may
result in the imposition of sanctions.
In view of the foregoing, plaintiffs' motion, dated April 15, 2004, for
an order permitting supplementation of their memorandum of law and for
other relief is denied. The "Preliminary Statement of Disputed Material
Facts," as well as the 80 exhibits and the accompanying authenticating
affidavit, are stricken and will not be considered on this motion.
The defendant's motion to dismiss the second amended complaint is set
for oral argument on May 28, 2004 at 11:45 a.m. The Court may limit each
side to 15 minutes.
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