Adams v. Deutsche Bank AG

529 F. App'x 98

• Court: Court of Appeals for the Second Circuit
• Decided: July 16, 2013
• Docket: 12-4259-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

Scott Adams, Blackwood Ventures, LLC, William G. Nesbitt, Murchison Ventures, LLC, Steven J. Umberger, and Queets Ventures, LLC (together, the “Adams Plaintiffs”) appeal from the September 24, 2012 judgment of the United States District Court for the Southern District of New York (Sullivan, J.) dismissing their second amended complaint in its entirety. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

The district court, sitting in diversity, looked to New York law to determine if plaintiffs’ claims were time barred. New York’s borrowing statute provides that:

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

N.Y. C.P.L.R. § 202. Thus, “when a nonresident plaintiff sues upon a cause of action that arose outside of New York, the court must apply the shorter limitations period, including all relevant tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued.” Stuart v. Am. Cyanamid Co., 158 F.Sd 622, 627 (2d Cir.1998). Where, as here, a claim alleges only economic injury, the claim accrues in the state where the plaintiff resides. Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525, 529, 693 N.Y.S.2d 479, 715 N.E.2d 482 (1999).

For the first time on appeal, the Adams Plaintiffs argue that Blackwood Ventures, LLC, Murchison Ventures, LLC, and Queets Ventures are residents of Delaware, which recognizes cross jurisdictional tolling. See Blanco v. AMVAC Chem. Corp., No. N11C-07-149 JOH, 2012 WL 3194412 (Del.Super.Ct. Aug. 8, 2012). We conclude that this argument is forfeited, as we do not consider a legal theory not raised before the district court “[i]n the absence of ‘manifest injustice.’ ” Robinson v. Gov’t of Malaysia, 269 F.3d 133, 146 (2d Cir.2001).

Plaintiffs are Florida residents. Florida provides the shorter statute of limitations, and thus governs the timeliness of the Adams Plaintiffs’ claims. Florida’s statute of limitations for fraud and fiduciary duty claims is four years, running from when the facts giving rise to it were discovered or should have been discovered with the exercise of due diligence. See Fla. Stat. §§ 95.11(3)0'), 95.11(3)(p), 95.031(2)(a). The statute of limitations for a breach of contract claim is five years, running from the date of accrual. Fla. Stat. § 95.031(1), 95.11(2)(b). Critically, Florida does not allow tolling during the pendency of class action lawsuits no matter where they are filed. See Fla. Stat. § 95.051(2) (“A disability or other reason does not toll the running of any statute of limitations except those specified in this section, § 95.091, the Florida Probate Code, or the Florida Guardianship Law.”).

Because Florida so clearly prohibits tolling during the pendency of class action lawsuits, regardless of where filed, the Adams Plaintiffs’ claims are time-barred. See, e.g., Becnel v. Deutsche Bank, AG, 507 Fed.Appx. 71, 73 (2d Cir.2013).

We have considered the remainder of the Adams Plaintiffs’ claims and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Each side to bear its own costs.