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GRAY v. FIRST WINTHROP CORP.

October 28, 1991

JULIUS GRAY and LEROY WILLIAM RODEWALD, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
FIRST WINTHROP CORPORATION, et al., Defendants


J. P. Vukasin, Jr., United States District Judge.


The opinion of the court was delivered by: VUKASIN

J. P. VUKASIN, JR., UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Defendants' Motions for Summary Judgement and Motions to Dismiss were scheduled to be heard on September 5, 1991. Defendants KPMG Peat Marwick ("Peat Marwick") and the Winthrop Defendants *fn1" moved for summary judgement and for dismissal. Defendants General Electric Company, General Electric Pension Trust ("GEPT"), and Arthur S. Bahr, as trustee of GEPT (the "GE Defendants") moved for summary judgement. After a review of the briefs, this court considered it appropriate to submit the motion on the pleadings pursuant to Local Rule 220-1, and now GRANTS the motions.

 BACKGROUND

 This is a securities class action arising out of the failure of a real estate limited partnership organized by the Winthrop Defendants. Defendant GEPT was the lender which provided financing for the real estate project. Defendant Peat Marwick prepared or participated in the preparation of financial forecasts for the partnership. Plaintiffs, who are investors in the limited partnership, allege that the offering materials prepared by certain of the defendants created a false and misleading picture that the investments in the partnership were safe and secure. The prospectus and offering materials were issued on October 31, 1984. Plaintiffs invested in the partnership in December 1984 and January 1985, each by purchasing one unit in the form of a $ 100,000, interest bearing, six year note.

 Plaintiffs' complaint initially set forth nine claims. They alleged violations of Section 10(b) of the Securities Exchange Act and Rule 10b-5, civil RICO, and various state causes of action. Following motions to dismiss and stipulations, the RICO claim and several state claims were eliminated. The only federal claims remaining are the claims for federal securities laws violations.

 Peat Marwick and the Winthrop Defendants move for summary judgement on the grounds that the Rule 10b-5 claims are time barred and for dismissal of the remaining pendant state law claims. The GE Defendants move for summary judgement on the grounds that the evidence produced in discovery is completely inconsistent with all of the plaintiffs' theories of liability.

 THE STANDARD FOR SUMMARY JUDGMENT

 Summary judgment should be granted where it is shown that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In Celotex, the Supreme Court made it clear that summary judgment, when appropriate, is a favored method of resolution, and that:

 
summary judgment is mandated, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.

 Celotex, 477 U.S. at 322, 106 S. Ct. at 2552.

 In addition, the Court emphasized in Anderson that, under Fed. R. Civ. P. 56(e), "when a properly supported motion for summary judgment is made, the adverse party 'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 250, 106 S. Ct. at 2511.

 DISCUSSION

 1. Peat Marwick's and the Winthrop Defendants' Motions.

 a. Statutes of Limitations.

 According to Lampf, Pleva, Lipkind, Prupis, & Petigrow v. Gilbertson, et al., 115 L. Ed. 2d 321, 111 S. Ct. 2773, 2782 (1991), "litigation instituted pursuant to ยง 10(b) and Rule 10b-5 . . . must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation." Furthermore, the Court ruled that the limitations period is not subject to the doctrine of equitable tolling. Rather, the three year period is the absolute limit for the institution of the action:

 
the 1-year period, by its terms, begins after discovery of the facts constituting the violation, making tolling unnecessary. . . . Because the purpose of the 3-year limitation is clearly to serve as a cutoff, we hold that tolling principles do not apply to that period.

 Id. The Court further held that this newly adopted statute of limitations applied to the dispute at issue in the Lampf case.

 The question here is whether the statute of limitations adopted in Lampf applies retroactively to this case. James B. Beam Distilling Co. v. Georgia, 115 L. Ed. 2d 481, 111 S. Ct. 2439 (1991), provides the answer. In Beam, the Supreme Court considered whether to apply retroactively the new constitutional rule it had announced earlier in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 82 L. Ed. 2d 200, 104 S. Ct. 3049 (1984). The Court held that "it is error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so. . . . Once retroactive application is chosen for any assertedly new rule, it is chosen for all others who might seek its prospective application." James B. Beam Distilling Co., 111 S. Ct. at 2446, 2447-48. Under this rationale, it would be error not to apply the Lampf one year/three year statute of limitations to this case. ...


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