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denying leave to amend complaint to add RICO claim, because the PSLRA "does not say `no person may rely on a defendant's conduct actionable as securities fraud to establish a RICO violation against that defendant.' Rather, it is written broadly to bar reliance on any conduct, no matter whose conduct it is. Thus, even were the Court to conclude that any defendant's conduct merely constituted unactionable aiding and abetting of Baron's securities fraud, the First Amended Complaint still relies extensively on Baron's and its brokers' securities fraud to establish such a defendant's liability under RICO."
Summary of this case from Seippel v. Sidley, Austin, Brown Wood, Llp.Opinion
No. 99 Civ. 0793 (RCC).
March 1, 2005
Memorandum Opinion Order
Plaintiffs have filed a motion for leave to amend their complaint pursuant to Federal Rule of Civil Procedure 15(a). For the following reasons, the motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Plaintiffs, prior customers of the securities broker A.R. Baron Co. ("Baron"), brought this suit on February 2, 1999. There were originally six causes of action alleged in the complaint: (1) primary violations of section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, by way of fraudulent misrepresentations and omissions ("10b-5 misrepresentation"), as well as violations of those provisions by virtue of Defendants' control of Baron under sections 20(a) and 20(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78(a)-(b); (2) violations of section 9 of the Securities Exchange Act of 1934, 15 U.S.C. § 78i, on a theory of market manipulation; (3) violations of section 10(b) and Rule 10b-5 based on market manipulation ("10b-5 market manipulation"); (4) violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., by certain defendants who have been criminally convicted of securities fraud; (5) aiding and abetting Baron's breach of fiduciary duty; and (6) common-law fraud.
On April 6, 2004, this Court dismissed Plaintiffs' complaint in part for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and for failure to plead with sufficient particularity under Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act of 1995 ("PSLRA"), Pub.L. No. 104-67, 109 Stat. 737 (1995) (codified as amendments to 15 U.S.C. §§ 78-78 and 18 U.S.C. § 1964). See Fezzani v. Bear, Stearns Co., No. 99 Civ. 0793 (RCC), 2004 WL 744594, at *26-*27 (S.D.N.Y. Apr. 6, 2004) ("Fezzani I"). The Court granted Plaintiffs leave to replead only those claims denied for insufficient pleading — the third cause of action brought by Plaintiffs James Bailey and Margaret and Patrick Burgess against Defendants Donald Co., First Hanover Securities, and Fahnestock Co., and those same plaintiffs' third cause of action against Defendants Dwecks, Wolfsons, Basil Shiblaq, Ken Stokes, and Fozie Farkash. On August 10, 2004, the Court granted in part Plaintiffs' motion for reconsideration and expanded the permission to replead to include (1) those common-law fraud claims not based on unauthorized trades, and (2) a theory of civil conspiracy to defraud. See Fezzani v. Bear, Stearns Co., No. 99 Civ. 0793 (RCC), 2004 WL 1781148, at *4 (S.D.N.Y. Aug. 10, 2004) ("Fezzani II").
Defendants argue that the First Amended Complaint goes beyond the scope of the permission to replead granted in Fezzani I andFezzani II. Plaintiffs now seek permission to file the First Amended Complaint under Federal Rule of Civil Procedure 15(a). Along with the repleading of claims expressly permitted by the Court, the First Amended Complaint includes: (1) 10b-5 market manipulation claims by Plaintiffs Bootlesville Trust, the Burgesses, and Bailey against certain defendants; (2) additional RICO claims on which Plaintiffs seek to rely only if Defendants are not found liable for securities violations; (3) a claim for aiding and abetting breach of fiduciary duty against certain defendants; and (4) a new cause of action for aiding and abetting common-law fraud.
It is not clear whether the references in the First Amended Complaint to "Bailey" and "Burgess" (see First Amended Complaint ["FAC"] ¶ 317, Ex. A to Declaration of Max Folkenflik in Support of Pls.' Motion for Leave to File) are meant to include James and Jane Bailey and Margaret and Patrick Burgess. Resolution of this issue does not affect the Court's analysis in this decision.
II. DISCUSSION
A. Standard to Amend a Complaint
Federal Rule of Civil Procedure 15(a) provides:
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Plaintiffs lost the right to amend the complaint as a matter of course when this Court granted the motions to dismiss. See Elfenbein v. Gulf W. Indus., Inc., 590 F.2d 445, 448 n. 1 (2d Cir. 1978) ("[W]hile the law in this circuit is that a motion to dismiss is not a responsive pleading, and therefore the complaint may be amended without leave of the court, it is equally well established that this right terminates upon the granting of the motion to dismiss." (citation omitted)); Swan v. Bd. of Higher Educ., 319 F.2d 56, 60-61 (2d Cir. 1963) ("The law is clear that once [a] judgment dismissing the original complaint ha[s] been entered, the right granted to plaintiff by Rule 15(a) . . . to amend his complaint once as a matter of course [is] at an end.");cf. Baker v. Latham Sparrowbush Assocs., 808 F. Supp. 992, 997 (S.D.N.Y. 1992), aff'd, 72 F.3d 246 (2d Cir. 1995) ("Rule 15(a) does not permit a party to file an amended complaint as of right after the court dismisses the complaint with prejudice on a Rule 12(b)(6) motion."). Plaintiffs therefore must seek leave to file the First Amended Complaint to the extent that it goes beyond permission already given.
"Rule 15(a) declares that leave to amend 'shall be freely given when justice so requires'; this mandate is to be heeded." Forman v. Davis, 371 U.S. 178, 182 (1962). The Court may deny leave to amend on the grounds of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, and futility of the proposed amendment. Id.
B. There is No Undue Prejudice or Undue Delay; The Law-of-the-Case Doctrine Does Not Apply
Despite Defendants' protestations to the contrary, the Court finds no evidence of undue delay or dilatory motive. Plaintiffs moved to amend the complaint soon after the Court's decision on their motion for reconsideration. And, while the proposed amendments would expand the scope of this litigation, that does not constitute undue prejudice because no discovery has yet taken place in this case. Cf. Berman v. Parco, 986 F. Supp. 195, 201 (S.D.N.Y. 1997) (finding undue prejudice when motion to amend came after discovery had closed). The mere fact that the proposed amendments may be afterthoughts based on information in Plaintiffs' possession prior to the first motion is insufficient to establish prejudice or bad faith. See Middle Atl. Utils. Co. v. S.M.W. Dev. Corp., 392 F.2d 380, 385 (2d Cir. 1968) ("Many amendments will be afterthoughts; often they will be engendered because counsel anticipates defeat on the initial complaint. Such realities alone do not support the denial of a motion to amend."). Furthermore, the amendments would not be barred by the law-of-the-case doctrine because that doctrine applies merely to the resolution of legal issues; the proposed amendments, however, rely on new factual allegations, the sufficiency of which have not been ruled upon. See Steinfield v. Marks, No. 96 Civ. 0552 (PKL), 1997 WL 563340, at *3 (S.D.N.Y. Sept. 8, 1997) (holding that law-of-the-case doctrine did not bar amended complaint that included new factual allegations after motion to dismiss was granted because "the Court has not already decided whether these new allegations are sufficient to state a claim").
C. Some of the Proposed Amendments Would Be Futile
Defendants argue that Plaintiffs should be denied leave to add some of the claims to the complaint because they are futile. An amendment is futile when the proposed claim would not survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),Lucente v. Int'l Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir. 2002), or when the proposed amendments would not cure the defects such as failure to plead with sufficient particularity, see Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995). Plaintiffs argue that the Court should not address the sufficiency of the proposed amendments on a motion for leave to amend, and cite four district-court cases, three of which are more than twenty years' old, and a magistrate's decision, in support of that proposition. (See Plfs.' Reply Mem. in Support of Their Motion for Leave to File a First Amendment Complaint (citing Hanna v. Metro-North Commuter R.R. Co., 753 F. Supp. 1169, 1177 (S.D.N.Y. 1990); Madison Fund, Inc. v. Denison Mines, Ltd., 90 F.R.D. 89, 91 (S.D.N.Y. 1981);Grogg v. Gen. Motors Corp., 72 F.R.D. 523, 527 (S.D.N.Y. 1976);Key Pharm., Inc. v. Hans Lowey, 54 F.R.D. 447, 449 n. 5 (S.D.N.Y. 1972); Honeywell, Inc. v. J.P. Maguire Co., No. 93 Civ. 5253 (DAB) (HBP), 1997 WL 80987, at *2 (S.D.N.Y. Feb. 25, 1997) (Pitman, M.J.)).) More recent Second Circuit caselaw makes clear, however, that a district court addressing the futility of proposed amendments to a complaint should consider whether the amendments are sufficient on the merits. See, e.g., Oneida Indian Nation of N.Y. v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003); Lucente, 310 F.3d at 258; Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002).
The Court concludes that the Plaintiffs' proposed additional RICO claims, Patrick Burgess's proposed pre-February 2, 1996 securities-fraud claims predicated on his party status in theBerwecky v. Bear Stearns class action, and Plaintiffs' proposed aiding and abetting breach of fiduciary duty claims based on pre-February 2, 1996 actions would not survive a motion to dismiss and are therefore futile.
1. Leave to Add the Additional RICO Claims is Denied as Futile
RICO explicitly excludes securities fraud as a predicate offense in civil actions:
Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962. The exception contained in the preceding sentence does not apply to an action against any person that is criminally convicted in connection with the fraud. . . .18 U.S.C. § 1964(c) (emphasis added). The emphasized language (the "RICO amendment") was added to RICO by the PSLRA. Bald Eagle Area Sch. Dist. v. Keystone Fin., Inc., 189 F.3d 321, 327 (3d Cir. 1999). The amendment also bars recasting conduct that would be actionable securities fraud as mail or wire fraud. Id. Plaintiffs argue that they merely seek to add the RICO claims in the alternative. As this Court previously noted in Fezzani I, 2004 WL 744594, at *17, the Supreme Court has held that section 10(b) and Rule 10b-5 do not provide a cause of action for aiding and abetting securities fraud, see Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 191 (1994). Plaintiffs maintain that if the Court finds any defendant was merely an aider and abettor of Baron's securities violations, and therefore not liable for securities fraud under Central Bank, then, and only then, would Plaintiffs assert RICO claims against such a defendant. Although the Federal Rules of Civil Procedure generally permit the pleading of inconsistent claims,see Fed.R.Civ.P. 8(e)(2), Defendants argue that the RICO amendment bars Plaintiffs' attempt to plead in the alternative here.
The starting point for this question of statutory interpretation is the language of the statute. Kosak v. United States, 465 U.S. 848, 852 (1984). The RICO amendment states that "no person may rely upon any conduct [actionable as securities fraud] to establish a violation of section 1962." 18 U.S.C. § 1964(c) (emphasis added). Plaintiffs rely throughout their complaint on the conduct of Baron and its employees (twelve of whom are defendants in this action), conduct which no party who has appeared disputes is actionable as securities fraud. See Fezzani I, 2004 WL at 744594, at *23. Plaintiffs rely upon Baron's conduct, in part, to establish the elements of a RICO violation against Defendants. (See, e.g., FAC ¶¶ 1-47 (describing the fraudulent conduct of Baron in the purchase and sale of securities up until its bankruptcy in July 1996); id. ¶ 334 (incorporating into the RICO allegations the prior allegations of the complaint including the extensive discussion of Baron's securities fraud); id. ¶ 338(d)(ii) (alleging that Defendants committed "tens of thousands of acts of mail fraud . . . as the result of the above-described frauds"). The statute does not say "no person may rely on a defendant's conduct actionable as securities fraud to establish a RICO violation against that defendant." Rather, it is written broadly to bar reliance on any conduct, no matter whose conduct it is. Thus, even were the Court to conclude that any defendant's conduct merely constituted unactionable aiding and abetting of Baron's securities fraud, the First Amended Complaint still relies extensively on Baron's and its brokers' securities fraud to establish such a defendant's liability under RICO.
The "criminal-conviction exception" to the RICO amendment does not allow Plaintiffs to rely on Baron's or its employees' conduct except against those defendants who were convicted of securities fraud, claims which were included in the original complaint. Unlike the RICO amendment itself, the criminal-conviction exception is expressly associated with a particular defendant. The exception only applies to "an action against any person that is criminally convicted in connection with the fraud," 18 U.S.C. § 1964(c), while the RICO amendment bars any reliance by any person on any conduct that is actionable as securities fraud to establish a RICO violation, see id.
Plaintiffs urge a particularly narrow interpretation of the RICO amendment. They would have the statute permit RICO liability against any defendant not individually alleged to have committed securities fraud, despite extensive reliance on others' securities fraud. This interpretation is inconsistent with Congress's purpose. The RICO amendment was intended to eliminate "the so-called 'treble-damages blunderbuss of RICO' in securities fraud cases." Matthews v. Kidder, Peabody Co., 161 F.3d 156, 164 (3d Cir. 1998) (quoting 141 Cong. Rec. H2771 (daily ed. Mar. 7, 1995) (statement of Rep. Cox)). Were courts to permit RICO claims whenever a plaintiff failed to state a cause of action for securities fraud against a particular defendant, plaintiffs would then have the incentive to present only those facts that, if taken as true (as they must be on a motion to dismiss), would not form the basis of a securities-fraud claim. The plaintiff as master of the complaint, see Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002), could reap the benefits of a RICO claim complete with the threat of treble damages by merely failing to state a cause of action for securities fraud against a particular defendant while relying on others' securities fraud to establish a RICO claim. Armed with the knowledge that aiding and abetting a manipulative or deceptive practice is insufficient under Central Bank, for example, a plaintiff could deliberately plead facts that established no more than that a particular defendant aided and abetted another's securities fraud. Such incentive is particularly strong where, as here, a plaintiff might rely on the securities fraud of those with few assets to obtain treble damages against deeper pockets.
Under Plaintiffs' interpretation of the RICO amendment, such a plaintiff would be able to seek treble damages and thereby easily avoid Congress's purpose in the PSLRA. Other courts have rejected such selective pleading. See, e.g., Bald Eagle, 189 F.3d at 329-30 ("Allowing such surgical presentation of the cause of action here would undermine the congressional intent behind the RICO Amendment."); Gertz v. Ponsoldt, 297 F. Supp. 2d 719, 730 (D. Del. 2003) ("[A] plaintiff cannot circumvent the PSLRA's exclusion of securities fraud as a RICO predicate act through artful pleading."); Burton v. Ken-Crest Servs., Inc., 127 F. Supp. 2d 673, 677 (E.D. Pa. 2001) ("Plaintiff cannot magically revive his claim by picking out discreet details of his allegations and then claiming that they are not actionable as securities fraud.").
Other courts have also interpreted the RICO amendment broadly. For example, courts have held that there need not be a nexus between the particular plaintiff asserting a RICO violation and the conduct actionable as securities fraud. See, e.g., Howard v. Am. Online, Inc., 208 F.3d 741, 749 (9th Cir. 2000); In re Enron Corp. Secs., Derivative ERISA Litig., 284 F. Supp. 2d 511, 620 (S.D. Tex. 2003). The Ninth Circuit held in Howard that plaintiffs who had no standing to assert securities-fraud claims were still barred by the RICO amendment from alleging securities fraud as a predicate act under RICO. See 208 F.3d at 749. The plaintiffs in that case did not dispute that "their securities fraud claims could be brought by a plaintiff with proper standing." Id. Because the RICO amendment bars reliance on "any conduct" actionable as securities fraud, it was irrelevant that the plaintiffs themselves could not bring a securities-fraud action based on that conduct. Id.; see also In re Enron, 284 F. Supp. 2d at 620 ("The RICO Amendment bars claims based on conduct that could be actionable under the securities laws even when the plaintiff, himself, cannot bring a cause of action under the securities laws.").
The Court sees no reason why the Ninth Circuit's persuasive analysis should not apply to the relationship between the conduct actionable as securities fraud and the particular defendant alleged to have committed that conduct. Howard teaches that the RICO amendment does not require a particular plaintiff to have an actionable securities-fraud claim, but rather bars reliance on any conduct actionable as securities fraud. The plaintiffs inHoward impermissibly sought to rely on conduct actionable as securities fraud to establish their RICO claim against the defendants. Similarly, Plaintiffs here seek to rely on Baron's conduct actionable as securities fraud to establish a RICO violation. It does not matter here that the actionable conduct was not a particular defendant's, just as it did not matter inHoward that the conduct was not actionable by a particular plaintiff.
The allegations throughout Plaintiffs' proposed First Amended Complaint concern Defendants' alleged fraudulent misrepresentations, omissions, and market manipulation regarding the purchase and sale of securities. Plaintiffs rely on the same factual allegations for their securities-fraud claims as they do for their RICO claims. Cf. Krear v. Malek, 961 F. Supp. 1065, 1074 (E.D. Mich. 1997) (holding that RICO claims were barred under the RICO amendment when they were based on the same factual allegations as alleged securities, mail, and wire fraud). When Congress said that no person may rely on any conduct actionable as securities fraud to establish a RICO violation, it meant it.See United States v. LaBonte, 520 U.S. 751, 757 (1997) (asserting that statutory interpretation begins from the premise that Congress means what it says). Plaintiffs cannot seriously claim that their RICO cause of action incorporating over 300 paragraphs of alleged securities fraud centered on Baron's securities-fraud schemes, does not rely on any such conduct. The additional RICO claims would be futile and accordingly leave to add them is denied.
For these reasons, the Court cannot agree with Judge Haight's more narrow interpretation of the RICO amendment inRenner v. Chase Manhattan Bank, No. 98 Civ. 926 (CSH), 1999 WL 47239, at *6-*7 (S.D.N.Y. Feb. 3, 1999).
2. Patrick Burgess's Status as a Named Plaintiff in Berwecky Does Not Change the Court's Prior Holding That Pre-February 2, 1996 Securities-Fraud Claims Are Time-Barred
The Court held in Fezzani I that the class action complaint in Berwecky v. Bear Stearns, No. 97 Civ. 5318 (S.D.N.Y. filed July 21, 1997), did not toll the statute of limitations on Plaintiffs' securities-fraud claims against the Bear Stearns Defendants (Bear, Stearns Co., Inc., Bear Stearns Securities Corp., and Richard Harriton) under the Supreme Court's decisions in American Pipe Construction Co. v. Utah, 414 U.S. 538 (1974), and Crown, Cork Seal Co. v. Parker, 462 U.S. 345 (1983), because Plaintiffs filed this separate suit before theBerwecky class was certified. See Fezzani I, 2004 WL 744594, at *8-*10. Thus, any incidents of securities fraud that occurred prior to February 2, 1996 are time-barred. See id. at *10. Plaintiff Patrick Burgess now seeks to reassert claims for alleged securities fraud that occurred prior to February 2, 1996, based on his status as a named plaintiff in the Berwecky action before class certification. The only authority that Plaintiffs cite for this proposition is Perez v. Paramount Communications, Inc., 709 N.E.2d 83 (N.Y. 1999). Not only is Perez a state-court decision dealing with questions of state law, it does not even address the issue presented here, that is, whether Burgess's status as a named plaintiff distinguishes him from the other plaintiffs for statute-of-limitations purposes. The New York Court of Appeals held in Perez that the filing of a motion to amend a complaint to add claims against a defendant tolls the statute of limitations on those claims against that particular defendant.Id. at 87. It is of little aid to Plaintiffs on this motion.
Because Plaintiffs have not provided any meaningful distinction between Burgess's pre-February 2, 1996 claims and those of the other plaintiffs, all of whom filed suit before the Berwecky class was certified, and because the Court can imagine none of its own, Burgess's proposed claims based on his status as a named plaintiff in Berwecky are futile.
3. Plaintiffs Have Failed to Plead Sufficient Facts to Estop Assertion of the Statute of Limitations Against the Claims of Aiding and Abetting Fiduciary Duty
Plaintiffs attempt to reassert claims for aiding and abetting breach of fiduciary duty that the Court has twice held to be untimely. See Fezzani II, 2004 WL 1781148, at *2-*3; Fezzani I, 2004 WL 744594, at *24. Plaintiffs now seek to avoid that holding by pleading facts meant to show that the statute of limitations should be equitably tolled or that Defendants should be equitably estopped from asserting it as a defense. The amendment would be futile and should be disposed of here.
Breach of fiduciary duty is a state-law tort and a state statute of limitations applies. Therefore, the question is whether Plaintiffs have adequately pled facts to relieve them from the statute of limitations as a matter of New York law. See Lee v. Am. Nat'l Ins. Co., 260 F.3d 997, 1006 (9th Cir. 2001) ("Whether the statute of limitations on a state-law cause of action is tolled under circumstances like those present in this case is, of course, a matter of state law."). Under New York law, "[i]t is the rule that a defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud, misrepresentations, or deception to refrain from filing a timely action." Simcuski v. Saeli, 377 N.E.2d 713, 716 (N.Y. 1978). As the Second Circuit has explained, "New York appears to use the label 'equitable estoppel' to cover both the circumstances where the defendant conceals from the plaintiff the fact that he has a cause of action [and] where the plaintiff is aware of his cause of action, but the defendant induces him to forego suit until after the period of limitations is expired." Pearl v. City of Long Branch, 296 F.3d 76, 82 (2d Cir. 2002) (internal quotation marks and citation omitted). Plaintiffs' argument falls in the former category, but the First Amended Complaint fails to adequately allege equitable estoppel.
The court in Pearl looked to its own precedents regarding fraudulent concealment to identify the contours of New York's equitable estoppel rules. See id. at 84. The Second Circuit noted that its prior cases had "made an important distinction between fraudulent concealment of the existence of a cause of action and fraudulent concealment of facts that, if known, would enhance a plaintiff's ability to prevail as to a cause of action of which the plaintiff was previously aware." Id. The court further stated that equitable principles could relieve a plaintiff from the statute of limitations only when "'it would have been impossible for a reasonably prudent person to learn' about his or her cause of action.'" Id. at 85 (quoting Miller v. Int'l Tel. Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985)). Finally, the Second Circuit held that there was "no reason to think that New York, whose tolling rules [are] 'less liberal' for plaintiffs than those of federal law, would not make the same distinction" between knowledge of a cause of action and knowledge of facts that would merely help a plaintiff prove the cause of action.Id. This Court has not located any subsequent New York case to indicate that the Second Circuit was wrong.
Here, Plaintiffs have not alleged that Defendants' conduct in withholding records in other matters made it impossible for them to discover that Defendants aided and abetted Baron's breach of fiduciary duty. That is so, in part, because the First Amended Complaint does not allege what documents were concealed and what documents or information was concealed.
The proposed First Amended Complaint merely alleges that the Bear Stearns Defendants fraudulently concealed some unspecified documents during two Baron executives' bankruptcy proceedings and during arbitration with Baron customers by "stonewall[ing]" and refusing to cooperate with the production of records. (FAC ¶ 354.) On information and belief, unnamed individuals at Bear Stearns allegedly told an unnamed individual to destroy unspecified records. (Id.) Additionally, "Bear and Harriton continued to conceal documents and testimony which would reveal its wrongful conduct." (Id.) The specific documents, or even their general nature, is not pled.
Similarly, Plaintiffs claim that the Dwecks (apparently all ten of them) and the Wolfsons and the entities that they own and control "fraudulently conce[aled] their participation in aiding and abetting Baron's breaches of fiduciary duty, and refused to cooperate with the A.R. Baron Trustee in revealing records concerning their securities transactions, even during discovery in Bankruptcy proceedings. This fraudulent concealment continued at least through the filing of this action." (Id. ¶ 355.) And even more pithily, "Fahnstock also fraudulently concealed the wrongdoing by its employees." (Id.) Plaintiffs do not accuse other defendants of fraudulent concealment.
Even if these allegations were sufficient to satisfy notice pleading requirements, they do not meet the heightened pleading standard for allegations of fraud. The Federal Rules of Civil Procedure still apply to the question of equitable tolling under New York law. See Vess v. Ciba-Geigy Corp., USA, 317 F.3d 1097, 1102 (9th Cir. 2003) ("The Federal Rules of Civil Procedure apply irrespective of the source of subject matter jurisdiction, and irrespective of whether the substantive law at issue is state or federal."). Courts have held that Rule 9(b) applies to fraud causes of action, see, e.g., Vess, 317 F.3d at 1103; Minger v. Green, 239 F.3d 793, 800 (6th Cir. 2001); Roberts v. Francis, 128 F.3d 647, 650-51 (8th Cir. 1997); Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir. 1985), and to fraudulent concealment to toll the statute of limitations of federal-law claims, see, e.g., Larson v. Northrop Corp., 21 F.3d 1164, 1173 (D.C. Cir. 1994); Armstrong v. McAlpin, 699 F.2d 79, 89 (2d Cir. 1983); Helprin v. Harcourt, Inc., 277 F. Supp. 2d 327, 338 (S.D.N.Y. 2003).
Because Rule 9(b) applies to all "averments of fraud," Fed.R.Civ.P. 9(b), Plaintiffs must plead the fraudulent concealment on which their equitable estoppel allegations are based with particularity just as a federal-law plaintiff must. They have not done so. The allegations do not explain what was concealed, and therefore, what was discovered once the alleged concealment ended. Cf. Armstrong, 699 F.3d at 89-90. The Second Circuit in Armstrong held that a claim of fraudulent concealment was insufficiently pled when the plaintiffs failed to state what material facts had been concealed. Id. The mere allegations that some defendants here may have failed to disclose some facts to investigating third parties without stating what those facts are is insufficient to satisfy Rule 9(b). Leave to add the fraudulent-concealment allegations as an attempt to estop Defendants from asserting a statute-of-limitations defense is therefore denied as futile.
4. Defendants' Remaining Objections to the First Amended Complaint
The Court finds the briefing on the futility of the remaining claims, including Plaintiffs' additional securities-fraud allegations, to be inadequate to determine whether the claims would survive a motion to dismiss. The Court therefore grants Plaintiffs leave to file the First Amended Complaint, with the deletions noted herein. Defendants may then file motions to dismiss the First Amended Complaint, at which time the Court will resolve their remaining arguments.
III. CONCLUSION
For the foregoing reasons, Plaintiffs' motion to amend the complaint is GRANTED IN PART and DENIED IN PART. Plaintiffs are denied leave to amend the complaint to add the claims noted herein. Plaintiffs shall file the First Amended Complaint in accordance with this decision by April 8, 2005. By April 15, 2005, the parties shall submit for the Court's approval a jointly proposed briefing schedule on the Defendants' motions to dismiss the First Amended Complaint.
So Ordered.