Fustok v. Conticommodity Services, Inc.

• Decision Date: 20 September 1985
• Docket Number: No. 82 Civ. 1538(MEL).,82 Civ. 1538(MEL).
• Citation: 618 F. Supp. 1076
• Parties: Mahmoud FUSTOK, Plaintiff, v. CONTICOMMODITY SERVICES, INC., Conticapital Management, Inc., Continental Grain Company, Walter M. Goldschmidt, Norton Waltuch, Tom Waldeck and Ivan Auer, Defendants.
• Court: U.S. District Court — Southern District of New York

618 F. Supp. 1076

Mahmoud FUSTOK, Plaintiff, v. CONTICOMMODITY SERVICES, INC., Conticapital Management, Inc., Continental Grain Company, Walter M. Goldschmidt, Norton Waltuch, Tom Waldeck and Ivan Auer, Defendants.

No. 82 Civ. 1538(MEL).

United States District Court, S.D. New York.

September 20, 1985.

Curtis, Mallet-Prevost, Colt & Mosle, New York City, (Herbert Stoller, Kevin R. Kopelson, New York City, of counsel), for plaintiff.

Sidley & Austin, New York City, (Marc J. Gottridge, New York City, Lawrence H. Hunt, Jr., David T. Pritikin, Sidley & Austin, Chicago, Ill., Sheldon L. Berens, Gen. Counsel, New York City, of counsel), for Continental Grain Co.

Parker Auspitz Neesemann & Delehanty P.C., New York City, (Jack C. Auspitz, Hollis L. Hyans, New York City, of counsel), for Walter M. Goldschmidt.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, (Mark H. Alcott, Cameron Clark, Richard A. Rosen, New York City, of counsel), for ContiCapital Management, Inc.

LASKER, District Judge.

Defendants Continental Grain Company ("Conti Grain"), Walter M. Goldschmidt, and ContiCapital Management, Inc. ("Conti Management") move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss as to them the fifth, twenty-first, and twenty-fourth claims alleged in plaintiff Mahmoud Fustok's Second Amended Complaint.

The fifth and twenty-first claims assert implied private rights of action for violations of the Commodity Exchange Act ("CEA"), 7 U.S.C. §§ 1-24 (1976 & Supp. III 1979). The fifth claim alleges that Conti Grain, Goldschmidt, and Conti Management, along with others, reallocated to Fustok's ContiCommodity Services, Inc. trading account 200 losing silver futures contracts originally purchased for someone else. The twenty-first claim alleges that Conti Grain and Goldschmidt failed diligently to supervise defendant Norton Waltuch's handling of Fustok's account. The twenty-fourth claim asserts a cause of action under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68 (1982), alleging acts of mail and wire fraud by Conti Grain, Goldschmidt, and Conti Management, in addition to other defendants.

Defendants argue that all three claims are timebarred by the applicable statutes of limitations. It is agreed that Fustok did not assert any claims against Conti Grain, Goldschmidt, or Conti Management until at least four and one-half years from the date of the last transaction upon which the claims are based. Defendants contend that the two CEA claims are governed by a two-year statute of limitations and that the RICO claim is subject to a three-year statute of limitations. Defendants also maintain that because the requirements of Federal Rule of Civil Procedure 15(c)(2) have not been met, the addition of Conti Grain, Goldschmidt and Conti Management as defendants in the litigation may not relate back to the date of the original complaint so as to avoid the application of the statutes of limitations. Fustok counters that a six-year statute of limitations applies to both the CEA claims and the RICO claim, and that in any event, Rule 15(c) does permit the claims against Conti Grain and Goldschmidt to relate back to the date of the original complaint.

For the reasons set forth below, the defendants' motion to dismiss the fifth, twenty-first, and twenty-fourth claims is denied.

Statute of Limitations for the CEA Claims

The fifth and twenty-first claims, which assert implied private rights of action under the CEA, are not governed by any expressly applicable statutes of limitations. In such a situation a federal court must "`borrow' the most suitable statute or other rule of timeliness from some other source." DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476 (1983). The general rule has been that federal courts will "look to the limitation periods of their forum states governing the most nearly analogous cause of action." Bache Halsey Stuart, Inc. v. Namm, 446 F.Supp. 692, 693 (S.D.N.Y.1978) (implied right of action under the CEA).

Defendants argue, however, that the most suitable rule of limitations for a private action under the CEA is the two-year period already embodied in the federal regulatory scheme in Sections 14(a), 7 U.S.C. § 18(a) (1982) (administrative reparations proceedings)¹ and 22(c), 7 U.S.C. § 25(c) (1982) (private right of action),² of the CEA. In support of this suggestion, they cite DelCostello, supra, in which Justice Brennan stated:

Resort to state law remains the norm for borrowing of limitations periods. Nevertheless, when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking, we have not hesitated to turn away from state law.

462 U.S. at 171-72, 103 S.Ct. at 2294.³ Defendants argue that the two-year statute of limitations provided in Section 14 of the CEA, 7 U.S.C. § 18, for the initiation of administrative reparations proceedings should apply because it governs a closely related form of relief.⁴ They also point out that the 1982 amendment that created in Section 22 of the CEA, 7 U.S.C. § 25, an express private right of action with a two-year statute of limitations constitutes "the closest possible analogy to an implied right of action" under the statute and provides "the best indication of congressional intent" as to how to fill the statute of limitations gap. Defendants' Memorandum of Law at 6. At least one court has thus far adopted defendants' theory. See Stephens v. Clayton Brokerage Co., No. 82-5786, slip op. (N.D.Ill. Apr. 19, 1984) (noting a need for uniformity).

Fustok takes the position that the norm for borrowing limitations periods remains a resort to state law, in spite of the Supreme Court's holding in DelCostello that drawing upon a related federal statutory scheme is also appropriate. He maintains that because his CEA claims sound in fraud and breach of contract, the New York law prescribing a six-year statute of limitations applies. See N.Y.CIV.PRAC.LAW §§ 213(2) (contract) and 213(8) (fraud) (McKinney Supp.1984).⁵

Although defendants' argument for the application of a two-year statute of limitations is provocative, it fails on two grounds. First, apparently no reported decision has ever, in an implied right of action context, borrowed the two-year limitation period from Section 14(a) of the CEA, which since 1974 has provided for administrative reparations proceedings. In fact, several decisions have explicitly rejected such an idea. See Shelley v. Noffsinger, 511 F.Supp. 687, 690-91 (N.D.Ill.1981); Grayson v. ContiCommodity Services, Inc., 1978-80 Transfer Binder COMM.FUT.L.REP. (CCH) ¶ 20,858 at 23,518 (D.D.C.1980); Jones v. B.C. Christopher & Co., 466 F.Supp. 213, 228 (D.Kan.1979). Moreover, the courts have adhered to the practice of applying state statutes of limitations (usually those governing either fraud or securities actions) to implied rights of action under the CEA even after the passage of the 1982 amendment creating an express right of action under the CEA with a two-year statute of limitations and after the Supreme Court rendered its decision in DelCostello. See Bernicker v. Pratt, 595 F.Supp. 1034, 1035 (E.D.Pa.1984); Cardoza v. CFTC, 588 F.Supp. 621, 628 (N.D.Ill.1984).

Second, it is not clear what significance is to be attributed to the 1982 amendment to the CEA creating in Section 22 an express right of action with a two-year statute of limitations. Section 22(d) states that "the enactment of the amendment shall not affect any right of any parties which may exist with respect to causes of action accruing prior to January 11, 1983." 7 U.S.C. § 25(d). Although under certain circumstances it may be permissible to consider the 1982 statute in order to divine Congress' intent as to the earlier provisions of the CEA even in the face of the non-retroactivity provision, see de Atucha v. Commodity Exchange, Inc., Current Transfer Binder COMM.FUT.L.REP. (CCH) ¶ 22,580 at 30,504 (S.D.N.Y.1985) (citing Sam Wong & Son, Inc. v. New York Mercantile Exchange, 735 F.2d 653, 676 n. 30 (2d Cir.1984)), the law in this Circuit would appear to preclude the application of a two-year limitations period to Fustok's pre-amendment implied right of action. The Court of Appeals for the Second Circuit was faced with a similar problem in EEOC v. Enterprise Association Steamfitters Local 638, 542 F.2d 579, 590 (2d Cir.1976) (Oakes, J.), cert. denied, 430 U.S. 911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977). In that case, the district court had applied a statute of limitations which was enacted by Congress to govern backpay actions only after the Steamfitters plaintiffs had initiated their actions. In the Steamfitters situation as in this case, pre-enactment courts as a rule had looked to analogous state statutes of limitations. Holding that "the subsequent enactment cannot be indicative of prior congressional intent," the Court of Appeals reversed the lower court and applied the most analogous state limitations period. 542 F.2d at 590.

Accordingly, the statute of limitations which should be applied to Fustok's CEA claims is the six-year period provided by New York law, N.Y.CIV.PRAC.LAW §§ 213(2) & 213(8), for actions based on breach of contract and on fraud. Plaintiff's fifth and twenty-first claims therefore are not time-barred.

Statute of Limitations for the RICO Claim

The twenty-fourth claim asserts a cause of action under RICO, which does not contain its own statute of limitations. The parties do not dispute that in this situation the court must apply the most appropriate limitations period provided by state law. See Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975).

Defendants contend that the most appropriate statute of...