The opinion of the court was delivered by: John T. Curtin United States District Judge
This action, initiated in New York State Supreme Court, Chautauqua County, and removed to this court on the basis of diversity of citizenship of the parties, seeks money damages for breach of an investment contract. Defendant National City Bank of Pennsylvania ("National City") has moved pursuant to Rule 56(c) of the Federal Rules of Civil Procedure for summary judgment dismissing the complaint, and plaintiff has filed a cross-motion for partial summary judgment.
For the reasons that follow, defendant's motion is granted, plaintiff's cross-motion is denied, and the complaint is dismissed.
On January 7, 2000, plaintiff and National City executed a "Discretionary Agency Agreement"(the "Agreement") which provides, in pertinent part:
1. Parties and Property.... [National City] hereby agrees to administer under the terms of this Agreement all property assigned and delivered to [National City] hereunder, all reinvestments thereof, and all income derived from such property and from such reinvestments (hereinafter the "property").....
3. Duties. [National City] shall: (a) collect all payments due on the property; (b) perform the necessary clerical and bookkeeping services relative to the property; (c) advise [plaintiff] of all maturities, redemptions, exchanges, tenders and shareholder rights and options; (d) send [plaintiff] periodic statements... showing all receipts, disbursements, and other transactions and an inventory of the property; and (e) disburse or accumulate the net income and disburse the principal as [plaintiff] directs....
5. Investments. [National City] shall make investment reviews of and recommendations concerning the property and shall sell, exchange, invest and otherwise deal with the property as [National City] shall determine from time to time in its sole discretion. In addition, [National City] shall sell, exchange, invest and otherwise deal with the property as [plaintiff] from time to time direct[s].....
12. Liability. [National City] shall not be liable for the depreciation in value of any property held hereunder due to its compliance with valid directions authorized under this Agreement.
See Item 30 (Klein Aff.), Exh. A.
Contemporaneous with the execution of the Agreement, Plaintiff executed a "Disclosure Statement" which provides, in pertinent part:
[Plaintiff], having entered into an Agreement (the "Agreement") this date with [National City], creating an account thereunder (the "account"), wherein National City is granted investment authority over the assets deposited with National City pursuant to the Agreement, acknowledges the following:
I. That investments purchased or recommended by National City are not the obligation of nor guaranteed by National City or its affiliates;
II. That investments purchased or recommended by National City are not deposits insured by the Federal Deposit Insurance Corporation (FDIC), and are subject to investment risk, including possible loss of principal invested;
III. That the market values of such investments do fluctuate, and upon liquidation, could be of a value more or less than the market value of [plaintiff's] original deposit into the account created under the Agreement;
IV. That income earned and retained in the said account, or received in distributions from the account, will fluctuate over time;
V. That the investment performance of National City in general, or any of the investments in particular, either reviewed or considered by [plaintiff] in entering the Agreement with National City is past performance only ...