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noting that fraud claims are governed by law of state in which plaintiffs suffered economic injury
Summary of this case from Cupersmith v. Piaker & Lyons P.C.Opinion
No. 04 CV 3496 (GBD).
January 19, 2005
MEMORANDUM DECISION AND ORDER
In an action for fraudulent misrepresentation, defendants move to dismiss the complaint on the grounds that the claims are untimely, the complaint fails to plead fraud with particularity, and the complaint fails to state a cause of action upon which relief may be granted. Plaintiffs filed a cross-motion to amend the complaint.
The parties submitted a joint letter wherein they indicated that if the Court finds that the claims in the original complaint are time-barred, "the case should be dismissed with prejudice and the issue of amending the complaint will be moot." (Letter from Binder of 8/6/04, at 1). The parties noted that "to conserve the Court's resources and reduce the cost to the parties, the parties jointly request that . . . Defendants' pending motion to dismiss be limited to the issue of whether Plaintiffs' claims are barred by the applicable statute of limitations. * * * If the Court denies Defendants' motion to dismiss, Defendants consent to Plaintiffs filing the proposed amended complaint." (Id. at 1-2). The Court so-ordered the parties' letter, and hence the Court's consideration is limited solely to that portion of defendants' motion to dismiss on the grounds of untimeliness.
Defendants contend that, since plaintiffs are residents of Nevada, Nevada's three year statute of limitations, applicable to fraud claims, govern. They, therefore, argue that since plaintiffs commenced this action more than three years after their claims accrued, the claims are time-barred. See, NEV.REV.STAT. § 11.190(3)(d) (2005) (providing in pertinent part that an action on the ground of fraud may only be commenced within three years, "but the cause of action in such a case shall be deemed to accrue upon the discovery by the aggrieved party of the facts constituting the fraud . . ."). Plaintiffs, however, contend that New York's six year statute of limitations is applicable because they were defrauded in New York. See, N.Y.C.P.L.R. § 213(8) (McKinney 2004) ("the time within which [an action based upon fraud] must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff . . . discovered the fraud, or could with reasonable diligence have discovered it.").
This Court finds that Nevada law applies, that the causes of action accrued more than three years prior to the commencement of this action, and hence plaintiffs' claims are barred by the statute of limitations. Therefore, defendants' motion to dismiss is granted and the complaint is dismissed. Plaintiffs' motion to amend the complaint is denied as moot.
When the dates in the complaint reveal that the action is barred by the statute of limitations, defendants may move to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989). In reviewing a complaint for dismissal, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in plaintiffs' favor. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). The complaint should only be dismissed where it appears beyond doubt that plaintiffs can present no set of facts entitling them to relief. Conley v. Gibson, 355 U.S. 41, 46 (1957); Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). The motion to dismiss on the grounds that an action is time-barred "may only be granted `when the allegations of the complaint make clear that the claim is barred by the limitations period.'" See, Merine v. Prudential-Bache Utility Fund, Inc., 859 F.Supp. 715, 724 (S.D.N.Y. 1994) (quoting Eickhorst v. E.F. Hutton Group, Inc., 763 F.Supp. 1196, 1202 (S.D.N.Y. 1990)). On a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), the Court is precluded from considering matters outside of the complaint. Courtenay Communications, Corp. v. Hall, 334 F.3d 210, 213 (2d Cir. 2003). In this regard, a complaint includes any written instrument attached as an exhibit and any statements or documents incorporated by reference into the complaint, or any matter of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. Tel., Co., 62 F.3d 69, 72 (2d Cir. 1995)); Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citation omitted).
Plaintiffs filed this complaint in New York State Supreme Court. Defendants removed the case to this Court on diversity grounds. In the summons, plaintiff asserts that the basis for venue, in the New York state court, is "the location of defendant law firms place of business." (Summons at p. 1). In the complaint, plaintiffs alleges that "[a]t all times herein mentioned," the plaintiffs were residents of the State of Nevada. (Compl. ¶¶ 1-2). The complaint alleges that defendants conspired to commit fraud by falsely representing the existence of a particular company and trust. The complaint further states that defendants used their names, goodwill and prestige to lure plaintiffs into investing into this nonexistent company and trust. Plaintiffs allege that, in reliance on defendants' representations, plaintiffs invested approximately $650,000 from 1998 to 2000. Plaintiffs further allege that they "did not discover the true facts with respect to the [defendants'] representations until after [plaintiffs'] reliance, nor could Plaintiffs, with reasonable diligence, have discovered the true facts prior to their reliance." (Compl. ¶ 50). Plaintiffs, however, do not contend that they only discovered the alleged fraud within the last three years.
In diversity cases, a federal court applies the choice-of-law rules of the forum state, here New York, in order to ascertain what state law governs the controversy. Klaxton Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Gilbert v. Seton Hall Univ., 332 F.3d 105, 109 (2d Cir. 2003) (citation omitted). Generally, the New York statute of limitations will apply even if the injury giving rise to the lawsuit occurred outside of New York. Stafford v. Int'l Harvester Co., 668 F.2d 142, 147 (2d Cir. 1981). An exception to this general rule exists in the New York "borrowing" statute, i.e. N.Y.C.P.L.R. § 202.Stuart v. Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir. 1998). Pursuant to C.P.L.R. § 202, an action filed by a nonresident plaintiff, seeking to recover for causes of action arising outside of New York, "requires application of the shorter statute of limitations period as well as all applicable tolling provisions, provided by either New York or the state where the cause[s] of action accrued." Cantor Fitzgerald Inc. v. Lutnick, 313 F.3d 704, 710 (2d Cir. 2002); see also, Stuart, 158 F.3d at 627. The borrowing statute prevents litigants from forum shopping in order to obtain a more favorable statute of limitations.Stafford, 668 F.2d at 151; Global Fin. Corp. v. Triarc Corp., 693 N.Y.S.2d 479, 480-81 (N.Y. 1999).
In tort actions, New York applies an interest analysis, i.e., the law of the jurisdiction having the greatest interest in the litigation governs. AroCHEM Int'l, Inc. v. Buirkle, 968 F.2d 266, 270 (2d Cir. 1992). When a choice-of-law issue arises in regard to rules regulating conduct, such as fraud, the law of the state where the tort occurs applies. AroCHEM, 968 F.2d at 270; L-3 Communications Corp. v. OSI Sys., Inc., 2004 WL 42276, at *3 (S.D.N.Y. Jan. 8, 2004). For purposes of the borrowing statute, a tort claim accrues at the time and in the place of the injury, not where the defendant committed the wrongful act. See, Gordon Co. v. Ross, 63 F.Supp.2d 405, 408 (S.D.N.Y. 1999);Global, 693 N.Y.S.2d at 481; see also, Maiden v. Biehl, 582 F.Supp. 1209, 1212 (S.D.N.Y. 1984) (quoting Indus. Consultants Inc. v. H.S. Equities, 646 F.2d 746, 747 (2d Cir. 1981)) ("To determine where a cause of action accrued in a fraud case, the test is not where the misrepresentations were made, or other factors relevant to the fraudulent activity itself, but where `the loss resulting from the misrepresentations was sustained.'"). Where the defendant's wrongful conduct occurs in one jurisdiction and plaintiff's injuries are suffered in a different jurisdiction, the place of the tort is deemed to be the place where the last event necessary to make the defendant liable occurred. See, Hidden Brook Air, Inc. v. Thabet Aviation Int'l Inc., 241 F.Supp.2d 246, 277 (S.D.N.Y. 2002) (quoting Frink Am. Inc. v. Champion Mach. Ltd., 48 F.Supp.2d 198, 205 (N.D.N.Y. 1999)). "Clearly a cause of action for fraud does not arise until loss is suffered; . . . [and therefore] the cause of action accrues where the loss is suffered."Sack v. V.T. Low, 478 F.2d 360, 366 (2d Cir. 1973); see also, Hidden Brook, 241 F.Supp.2d at 277. Even if the fraud occurred in New York, where the action is purely economic, it is governed by the law where plaintiffs suffered their injury which generally is the place where plaintiffs resided and sustained the economic impact of their loss. Cantor Fitzgerald, 313 F.3d at 710; Krock v. Lipsay, 97 F.3d 640, 646 (2d Cir. 1996) (and cases cited therein); Smith v. Soros, 2003 WL 22097990, at *4 (S.D.N.Y. Sept. 5, 2003), aff'd, 2004 WL 2378815 (2d Cir. Oct. 25, 2004); Gordon Co., 63 F.Supp.2d at 408;Global, 693 N.Y.S.2d at 482.
In opposing the motion to dismiss, each plaintiff submitted an affidavit setting forth factual allegations not asserted in the complaint. The Court is precluded from considering matters outside the complaint in determining a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). However, even if the Court were to consider the affidavits, they provide an insufficient basis to defeat the defendants' motion. In plaintiff Dutton's affidavit, he claims that although he was a resident of Nevada at the time this matter arose, he has since resided in Alaska and Minnesota, and spent substantial time traveling elsewhere. (Dutton Aff. ¶ 2). Plaintiff Kuckhoff alleges that he has been a resident of Nevada since 1970. (Kuckhoff Aff. ¶ 1). Plaintiffs allege that "New York is the rational and obvious location where an investor would go in order to have funded the underlying type of transaction through an international investment banking source, and therefore New York as a banking capital has a substantial interest in regulating that which transpires in its jurisdiction." (Dutton Aff. ¶ 2; Kuckhoff Aff. ¶ 3). They further claim that New York was the actual location where the fraud against them was perpetrated, as that is where they were induced into entering into the sham deal and was the location where defendants made their misrepresentations.
Plaintiffs argue that the law of their state of residence is inapplicable because the defendants do not allege any nexus with the State of Nevada, and all parties voluntarily have associated themselves with New York. Plaintiffs contend that had the defendants been sued in Nevada, defendants would have raised the issue that they could never reasonably be expected to be sued in Nevada since all of their actions, in regard to this lawsuit, transpired in New York. Such an argument is unavailing. Application of C.P.L.R. § 202 is required even where jurisdiction over the defendants cannot be obtained in the foreign jurisdiction because of their insufficient contacts with that state. In re Gaston Snow, 243 F.3d 599, 608 n. 7 (2d Cir. 2001); Ins. Co. Of North Am. v. ABB Power Generations, Inc., 668 N.Y.S.2d 143, 147 (N.Y. 1997). Section 202 controls the time limits for filing a lawsuit, not the issue of where one may be sued.
The complaint states that plaintiffs were residents of Nevada during the time period at issue in the complaint. Even plaintiffs' affidavits reveal that at the time they suffered the economic injury, they both resided in Nevada. Accordingly, plaintiffs suffered their economic loss, as a result of defendants' alleged fraudulent misrepresentations, in Nevada. Since plaintiffs are nonresidents of New York, the causes of action accrued in Nevada. Since Nevada's statute of limitations for fraud is shorter than that of New York, the New York borrowing statute requires that Nevada's three year limitation period be applied.
Under Nevada law, a cause of action for fraud must be commenced within three years from the date the aggrieved party discovered or should have, with the exercise of reasonable diligence, discovered the alleged wrongdoing. NEV. REV. STAT. § 11.190(3)(d). In the complaint, plaintiffs simply allege that they did not discover the true facts with respect to defendant's misrepresentations until after plaintiff's reliance, nor could plaintiffs, with reasonable diligence, have discovered the true facts prior to their reliance. Such a generalized and conclusory statement cannot overcome the factual allegations in the complaint clearly showing that the causes of action are barred by the applicable statute of limitations. Under such circumstances, the burden shifts to plaintiffs to establish a basis to toll the statute of limitations. See, Eickhorst, 763 F.Supp. at 1202; see also, Hoover v. Langston Equip. Assoc., Inc., 958 F.2d 742, 744 (6th Cir. 1992). Neither the complaint, nor plaintiffs' papers opposing the motion to dismiss, reveal when plaintiffs learned of the defendants' alleged fraudulent misrepresentations or when plaintiffs could, with the exercise of reasonable diligence, have made such a discovery. Even though plaintiffs' affidavits opposing the motion should not be considered, it should nevertheless be noted that neither plaintiffs deny having knowledge of defendants' alleged fraudulent misrepresentations more than three years prior to instituting this action. In fact, plaintiffs' opposition to the motion is limited to their argument that New York's six year statute of limitation should apply, in which case the action would be timely. Plaintiffs do not assert any time period during which they claim the statute of limitations was tolled, so as to render their action timely filed within the three year statute of limitations.
In light of the foregoing, the causes of action asserted by plaintiffs are time-barred. Accordingly, defendants' motion to dismiss the complaint with prejudice is granted. Plaintiffs' cross-motion to amend the complaint is denied as moot.
SO ORDERED.