Soley v. Wasserman

823 F. Supp. 2d 221, 2011 U.S. Dist. LEXIS 111522, 2011 WL 4526145
CourtDistrict Court, S.D. New York
DecidedSeptember 29, 2011
DocketNo. 08 Civ. 9262 (KMW) (FM)
StatusPublished
Cited by24 cases

This text of 823 F. Supp. 2d 221 (Soley v. Wasserman) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Soley v. Wasserman, 823 F. Supp. 2d 221, 2011 U.S. Dist. LEXIS 111522, 2011 WL 4526145 (S.D.N.Y. 2011).

Opinion

OPINION AND ORDER

KIMBA M. WOOD, District Judge.

On October 29, 2008, Plaintiff Judy W. Soley, a citizen of the State of New York, filed this diversity action against her brother, Defendant Peter J. Wasserman, a citizen of the State of California, asserting [225]*225a variety of claims arising out Wasserman’s conduct as Soley’s financial advisor over the past approximately thirty years. After multiple claims in her original complaint were dismissed, Soley filed an amended complaint on May 14, 2010. (See Amended Complaint (“AC”) (Dkt. No. 20).) In the AC, Soley asserts claims under New York state law for breach of contract, breach of fiduciary duty, common law fraud, an equitable accounting, and alter ego liability. On July 6, 2010, Wasserman moved to dismiss the AC pursuant to Federal Rules of Civil Procedure 8(a)(1), 12(b)(1), and 12(b)(6). (Dkt. No. 24.)

On February 9, 2011, the Court referred Wasserman’s motion to Magistrate Judge Frank Maas for a Report and Recommendation (“R & R”). On August 11, 2011, 2011 WL 4352384, Judge Maas issued an R & R, recommending that the Court deny Wasserman’s Rule 12(b)(6) motion with respect to certain aspects of Soley’s accounting claim, but dismiss the remainder of Soley’s claims. (Dkt. No. 30.) Both Wasserman and Soley have filed objections to the R & R. (Dkt. Nos. 31 & 32.)

For the reasons stated below, the Court adopts the R & R in part. Accordingly, Wasserman’s motion to dismiss the AC is granted in part and denied in part.

I. Background1

The facts of this case are set forth in the R & R, familiarity with which is assumed. The Court restates only those facts that are relevant in addressing the parties’ objections to the R & R.

Sometime during the late 1970s and or early 1980s, Wasserman, who had worked for more than thirty years in the securities industry, sought to take a more active role in his sister’s financial affairs, assuring her, “this is my field.” (AC ¶7.) After Soley agreed to end her relationship with her then-financial advisor, Wasserman “took on the role of Soley’s agent and trusted financial advisor.” (Id.)

A. Investments

During the following years, at Wasserman’s insistence, Soley opened brokerage accounts with multiple firms, including Fagenson & Company, Inc. (“Fagenson”). Soley designated Wasserman as her agent for those accounts, allowing Wasserman full trading authority. Wasserman gained “complete control” over Soley’s investments. (Id. ¶ 8.) Soley did not have contact with the brokers associated with her accounts; the communication was through Wasserman. (Id. ¶¶ 11-12.)

Soley, along with Wasserman and Wasserman’s close friend, invested in the stock of four companies in 1997 (the “Joint Stock Investments”). Soley’s initial investment in the four companies totaled $70,000. (Id. ¶ 46.) As of June 2007, the total value of those investments was $75,469. (Id. ¶ 47.) In 2006 and 2007, Soley made multiple attempts to obtain more information about the status of the Joint Stock Investments but was not successful, even after Wasserman promised to “gather the necessary and appropriate information regarding those investments. (Id. ¶¶ 48-53.)

B. Patriot Partners

On February 25, 1991, Wasserman founded Patriot Partners, L.P., a Delaware limited partnership. The purpose of Patriot Partners was to invest “for its own account in securities and other investment instruments traded on established markets in the United States.” (Id. ¶ 14.) Wasser[226]*226man was the General Partner, and was responsible for all of Patriot Partner’s investment decisions. (Id.)

In September 1991, after being solicited by Wasserman, Soley agreed to purchase a limited partnership interest in Patriot Partners, and signed a subscription agreement. A month later, Soley transferred $500,000 from her Fagenson account to her Patriot Partners account to purchase the limited partnership interest. (Id. ¶ 18.) Soley entered into a partnership agreement (the “Partnership Agreement”), under which Wasserman, as general partner, was obligated to “exercise good faith and integrity in handling Partnership affairs.” (Id. ¶ 15.) The Partnership Agreement required Wasserman to maintain accurate and complete accounting records, and to provide various financial statements within 60 days after the close of each of the first three fiscal quarters, and within 120 days after the close of each fiscal year. (Id. ¶ 16) The Partnership Agreement also required Wasserman to “take all action which may be necessary or appropriate for the preservation of the Partnership’s properties and the conduct of its business.” (Id. ¶ 17.) On October 19, 1998, Soley transferred an additional $150,000 to Patriot Partners from her Fagenson account, at the request of Wasserman. (Id. ¶ 19.) This amount was never credited to Soley’s Patriot Partners account, because it was deposited into another one of Soley’s investment accounts. (Id.)

Between 1991 and 2004, Soley never received any of the financial documents to which she was legally entitled under the Partnership Agreement other than an occasional letter. The letters that Soley did receive were misleading. (Id. ¶ 20.) Although Wasserman returned $552,361 to Soley, Patriot Partners still owes Soley at least $423,000 in “unreturned capital.” (Id.) This amount does not include the $150,000 that Soley transferred to Patriot Partners from her Fagenson account in October 1998. (Id.)

On or about December 31, 1995, Patriot Partner’s certificate of limited partnership was canceled by the Secretary of State of Delaware “for neglect, refusal, or failure to pay its annual taxes.” (Id. ¶ 23.) Wasserman never informed Soley of this event. (Id.) Patriot Partners continued to operate after the cancelation of its certificate.

Beginning in 2002, Soley repeatedly told Wasserman that she wanted Patriot Partner’s affairs wound up, and her shares returned to her. On December 29, 2004, Wasserman sent Soley an email, stating that he “had not ended Patriot Partners as of yet” but that he expected to do so in 2005. (Id. ¶ 22.) In 2008, Soley learned, through counsel, about the cancellation of Patriot Partners’ certificate. (Id. at 23.)

C. Patriot Group

In November 1992, Wasserman founded Patriot Group, a New York state general partnership with only two partners: himself and Soley’s son, John. (Id. ¶ 24.) The purpose of Patriot Group was to profit from “hot issues,” defined as newly issued stocks that sell at a premium over the public offering price on the first day of trading. (Id. ¶ 25.)

In or about November 1992, Wasserman asked Soley to loan Patriot Group $200,000 evidenced by a promissory note. In 1993, Soley loaned Patriot Group “an additional $225,228.” (Id. ¶ 26.) Wasserman promised to pay Soley interest on her loans “at a rate of 7%.” (Id.) Soley has never received an interest payment from Patriot Group. (Id.)

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Bluebook (online)
823 F. Supp. 2d 221, 2011 U.S. Dist. LEXIS 111522, 2011 WL 4526145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soley-v-wasserman-nysd-2011.