United States District Court, S.D. New York
OPINION & ORDER
A. CROTTY UNITED STATES DISTRICT JUDGE.
two decades ago, Plaintiffs, customers of a now defunct
broker dealer, A.R. Baron & Co.
("Baron"), brought an action, seeking money damages
from defendants for their alleged participation in a
coordinated fraud on Plaintiffs. Plaintiffs' claims were
dismissed. See Fezzani v. Bear, Stearns & Co.,
2005 WL 500377 (S.D.N.Y. Mar. 2, 2005); Fezzani, 592
F.Supp.2d 410 (S.D.N.Y. Sept. 23, 2008). On appeal, the
Second Circuit affirmed the dismissal of the federal claims,
but remanded the state law claims for (1) aiding and abetting
fraud and (2) civil conspiracy to defraud against Isaac R.
Dweck, individually and as custodian for Nathan Dweck,
Barbara Dweck, Morris I. Dweck, Ralph I. Dweck, and Jack
Dweck ("Dweck Defendants"), and Abraham Wolfson,
Morris Wolf son, and Aaron Wolf son ("Wolfson
Defendants, " and together with Dweck Defendants,
"Defendants"). See Fezzani, 716 F.3d 18
(2d Cir. 2013); Fezzani, 527 Fed.Appx. 89 (2dCir.
four years of repeated, but unfulfilled, promises, Plaintiffs
have failed to produce evidence sufficient to show their
damages. Defendants now move for summary judgment. In the
alternative, Defendants move for dismissal as sanctions.
reasons set forth below, the Court GRANTS
the motion for summary judgment and DENIES
the motion for sanctions, as moot.
action arises out of a massive fraud committed by Baron, its
officers and employees, and its co-conspirators. Baron was a
New York broker-dealer that operated from approximately May
1992 until its bankruptcy in July 1996. Horowitz Decl. Ex. A,
ECF 186-1, ¶ 1. Baron and its officers were convicted of
securities fraud. Id. at ¶¶ 2, 4.
February 1999, Plaintiffs filed a complaint, asserting claims
against eleven individuals and organizations which allegedly
propped up Baron's fraudulent activities. See
ECF 1. Plaintiffs claim damages of $7.25 million, out of more
than $80 million in trading losses attributed to Baron's
frauds. Horowitz Decl. Ex. A at ¶¶ 7, 37. When some
of the asserted claims were dismissed, Plaintiffs filed an
Amended Complaint in April 2005, alleging six claims: (1)
federal securities fraud based on the Defendants'
misrepresentations and omissions; (2) federal securities
fraud based on market manipulation; (3) violations of the
Racketeer Influenced and Corrupt Organizations Act
("RICO"); (4) common law fraud; (5) civil
conspiracy to defraud; and (6) aiding and abetting fraud.
See Amended Complaint, ECF 62; Horowitz Decl. Ex. A.
This Court dismissed all claims with respect to substantially
all defendants. Fezzani, 592 F.Supp.2d 410. On
appeal, the Second Circuit affirmed the dismissal of the
federal securities claims, but reinstated two state law
claims against Defendants and remanded. Fezzani, 716
F.3d 18; Fezzani, 527 Fed.Appx. 89.
remand to the District Court, more than a decade after the
filing of the original complaint, Plaintiffs and Defendants
agreed to truncate discovery in an effort to expedite the
resolution of the lawsuit. Accordingly, the parties agreed to
first determine Plaintiffs' damages, if any. Horowitz
Decl., ECF 186, ¶ 3; Folkenflik Deck, ECF 204,
¶¶ 7, 9. In April 2014, the parties agreed to
retain experts-Charles Myers, Paul Moulden, and Adam Kalt
from the firm Economic Analysis Group, Ltd.
("EAG")-to analyze the Plaintiffs' trading
records and determine any trading losses and gains in their
accounts. Def. Stmt. 56.1, ¶¶ 2, 3; Pl. Stmt. 56.1,
¶¶ 2, 3.
September 2014, EAG informed Defendants that, without a
complete set of the individual Plaintiffs' account
statements, EAG was unable to perform the requested analysis.
Def. Stmt. 56.1, ¶ 4; Pl. Stmt. 56.1, ¶ 4.
Defendants subsequently requested Plaintiffs to provide the
missing statements, but to date, Plaintiffs have not produced
them. Def. Stmt. 56.1, ¶ 5; Pl. Stmt. 56.1, ¶ 5.
judgment is appropriate where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. § 56(a). The Court "resolve[s] all
ambiguities and draw[s] all reasonable inferences in the
light most favorable to the nonmoving party." Summa
v. Hofstra Univ., 708 F.3d 115, 123 (2d Cir. 2013).
Where the non-moving party has the burden of proof, however,
the moving party need only show that there is no evidence to
support a necessary element of the non-moving party's
claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Summary judgment is warranted where "the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party." Smith v. Cnty. of
Suffolk, 776 F.3d 114, 121 (2d Cir. 2015).
Motion for Summary Judgment
now move for summary judgment, contending that Plaintiffs
cannot adduce any evidence to establish their ...