Filed December 21, 2012
Acceptance Co., LLC, Sec. Litig., 391 F.3d 401, 410 (2d Cir. 2004) (clear statement requirement); Stokes v. JPMorgan Chase Bank, NA, 2012 WL 527600, at *7 n.4 (D. Md. 2012); Citgo Petroleum Corp. v. Bulk Petroleum Corp., 2010 WL 3212751, at *3 n.4 (N.D. Okla. 2010). In any event, Plaintiffs’ claims here would still be time-barred under the new period because the complaint was filed five-and-a-half years after New Century’s bankruptcy, when it ceased to do business.
Filed April 27, 2009
In asserting an alleged “mistake,” a plaintiff must “show either a factual mistake as to the name of the party to be sued . . . or a legal mistake concerning the requirements of the cause of action.” Rogers v. Sterling Foster & Co, 222 F. Supp. 2d 216, 261 (E.D.N.Y. 2002). Here, where S&P’s ratings were a part of the Registration Statements — and thus, its identity known — there clearly was no “mistake” and the claims against it cannot relate back. See, e.g., In re Enterprise Mortgage Acceptance Co. Securities Litigation, 391 F.3d 401, 405 n.2 (2d Cir. 2004) (where plaintiff “chose not to name E&Y in their original complaint, Rule 15(c)’s relation back doctrine was inapplicable”); In re WorldCom, Inc. Securities Litiga- tion, 294 F. Supp. 2d 431, 449 (S.D.N.Y. 2003) (Cote, J.) (where new defendants had been “identified by name in the Offering documents giving rise to the claims alleged” and “had been named in other, earlier complaints asserting similar claims,” the plaintiffs “are assumed to have omitted the defendants intention- ally” and the claims against them “do not relate back”). In fact, there can be no doubt that Lead Counsel was aware of S&P’s identity as it had already sued S&P in three other cases alleging 1933 Act violations in connection with RMBS offerings by the time it filed its initial complaint in this matter. Nonetheless, for the reasons set forth in the brief filed by the Individual Defendants, Plaintiffs’ claims were, in any event, time-barred by the date the original complaints were filed.
Filed April 27, 2009
See Enterprise Mortg. Acceptance Co., Sec. Litig. v. Enterprise Mortg. Acceptance Co., 391 F.3d 401, 405 n.2 (2d Cir. 2004) (Rule 15(c) relation back doctrine inapplicable where plaintiff “did not sue another accountant by mistake, but rather chose not to name E & Y in their original complaint”); Bass v. World Wrestling Federation Entm’t, Inc. , 129 F. Supp. 2d 491, 508 (E.D.N.Y. 2001) (plaintiff bears burden of proving that failure to name new defendant in original pleading was a “mistake,” and “not due to strategy, lack of knowledge, or some other reason”) Case 1:08-cv-06762-LAK Document 63 Filed 04/27/09 Page 33 of 43 26 A. The Applicable Law Courts can “readily resolve the issue of inquiry notice as a matter of law on a motion to dismiss – as has been done in a vast number of cases in this circuit – where the facts needed for determination of when a reasonable investor of ordinary intelligence would have been aware of the existence of [the violations alleged] can be gleaned from the complaint and papers ... integral to the complaint.” Staehr v. Hartford Fin. Servs.
Filed December 23, 2008
Sec. Litig., 409 F.3d 974, 978 (8th Cir. 2005); Foss v. Bear, Stearns & Co., 394 F.3d 540, 542 (7th Cir. 2005); In re Enter. Mortgage Acceptance Co. Sec. Litig., 391 F.3d 401, 406 (2d Cir. 2004). Case5:07-cv-02822-JF Document102 Filed12/23/08 Page11 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT DOUGLAS SMITH’S 7 CASE NO. 5:07-C02822-JF MOT. TO DISMISS FAC 277095 Section 304’s text, legislative history, or SOX as a whole which might imply that Congress intended Section 304 to apply retroactively.5/ A statute operates retroactively when it “attaches new legal consequences to events completed before its enactment,” such as by “increas[ing] a party’s liability for past conduct . . . .” Landgraf, 511 U.S. at 270, 280 (quoted in Rodriguez v. Gen. Motors Corp., 27 F.3d 396, 398 (9th Cir. 1994)).
Filed October 1, 2007
Sec. Litig., 409 F.3d 974, 978 (8th Cir. 2005); Foss v. Bear, Stearns & Co., 394 F.3d 540, 542 (7th Cir. 2005); In re Enter. Mortgage Acceptance Co. Sec. Litig., 391 F.3d 401, 406 (2d Cir. 2004). Case5:07-cv-02822-JF Document57 Filed10/01/07 Page12 of 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT DOUGLAS SMITH’S 7 CASE NO. 5:07-C02822-JF MOT. TO DISMISS/STRIKE COMPLAINT 268846 address the issue have opined that Section 304 does not apply retroactively, as “nothing in the text of Section 304 suggests retroactive application of any of its provisions.”
Filed February 28, 2006
Mem. 29) (citing Aetna Life Ins. Co. v. Enter. Mortgage Acceptance Co., 391 F.3d 401, 410 (2d Cir. 2005)). In any event, PPM’s contention is without merit.
Filed February 13, 2013
In re Drexel Burnham Lambert Group, 995 F.2d 1138 (2d Cir. 1993) .............................67 In re Enterprise Mortgage Acceptance Co., LLC, Securities Litigation, 391 F.3d 401 (2d Cir. 2004).........................................................................................47 In the Matter of Flagship Mortgage Services, HUDALJ 90-154-MR, 1991 WL 11668525 (H.U.D.A.L.J. Jan. 16, 1991) ................66