Ruffolo v. Oppenheimer & Co.

• Decision Date: 04 March 1993
• Docket Number: No. 936,D,936
• Citation: 987 F.2d 129
• Parties: Fed. Sec. L. Rep. P 97,386, 25 Fed.R.Serv.3d 543 Saverio D. RUFFOLO, Plaintiff-Appellant, v. OPPENHEIMER & COMPANY, Anthony G. Caserta, and the Chicago Board Option Exchange, Inc., Defendants, Oppenheimer & Company, Anthony G. Caserta, Defendants-Appellees. ocket 92-7989.
• Court: U.S. Court of Appeals — Second Circuit

Page 129

987 F.2d 129

Fed. Sec. L. Rep. P 97,386, 25 Fed.R.Serv.3d 543

Saverio D. RUFFOLO, Plaintiff-Appellant, v. OPPENHEIMER & COMPANY, Anthony G. Caserta, and the Chicago Board Option Exchange, Inc., Defendants Oppenheimer & Company, Anthony G. Caserta, Defendants-Appellees.

No. 936, Docket 92-7989.

United States Court of Appeals Second Circuit.

Argued Feb. 11, 1993.

Decided March 4, 1993.

Anthony M. Fischetti, New York City (Steven I. Brizel, Garbarini & Scher, on the brief), for plaintiff-appellant.

Alan R. Friedman, New York City (Robert P. Mulvey and Linda Yassky, Gold, Farrell & Marks, on the brief), for defendants-appellees.

Before: KEARSE, CARDAMONE, and PIERCE, Circuit Judges.

PER CURIAM:

Plaintiff Saverio D. Ruffolo appeals from a judgment of the United States District Court for the Southern District of New York, Shirley Wohl Kram, Judge, dismissing the complaint against defendants Oppenheimer & Company ("Oppenheimer") and Anthony G. Caserta pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that it failed to state a claim on which relief can be granted, and denying leave to file an amended complaint. The court also dismissed the action against Caserta pursuant to Fed.R.Civ.P. 12(b)(5) on the ground that Ruffolo had failed to effect proper service of the summons and complaint on him. On appeal, Ruffolo, though he does not contend that the complaint alleged claims on which relief can be granted, contends that the district court erred (a) in ruling that service was inadequate and (b) in refusing to allow him to file an amended complaint. Since we see no abuse of discretion in the district court's denial of leave to amend, we affirm the judgment without reaching questions as to the service of process.

This case returns to this Court following proceedings after our dismissal of a prior appeal for lack of appellate jurisdiction, see Ruffolo v. Oppenheimer & Co., 949 F.2d 33 (2d Cir.1991) ("Ruffolo I "). The background of the litigation is set forth in Ruffolo I, and will be but briefly summarized here. Ruffolo, an investor, brought the present action in July 1990 against Oppenheimer, a brokerage firm, and Caserta, an Oppenheimer sales representative, as well as against the Chicago Board Option Exchange, Inc. ("CBOE"). Ruffolo stipulated to the dismissal of his claims against CBOE in September 1990.

The complaint alleged principally that Oppenheimer and Caserta had performed "in a negligent, improper, unprofessional and in an unknowledgeable manner," and had made misrepresentations in connection with their expertise in options trading, in violation of state and federal securities laws. It alleged that those misrepresentations, in conjunction with the sharp decline in securities values on national securities exchanges on October 19, 1987, caused Ruffolo, inter alia, loss of income, physical and psychiatric injuries, and the dissolution of his marriage. Ruffolo sought $40,000,000 in compensatory damages, plus punitive damages. Prior to bringing this action, Ruffolo had commenced an arbitration proceeding against Oppenheimer, which continued for some two years. During the arbitration proceeding, there occurred what Ruffolo's attorney described as "protracted discovery." The proceeding was terminated, however, after Ruffolo and his attorney failed to appear for the arbitration hearing.

In a Memorandum Opinion and Order dated February 5, 1991, 1991 WL 17857 ("1991 Ruling"), the district court dismissed the claims against Oppenheimer principally for failure to state a claim on which relief can be granted and for failure to allege fraud with specificity as required by Fed.R.Civ.P. 9(b). Though Ruffolo sought leave to file an amended complaint, the court denied his motion, stating that "[i]f, after two years of 'protracted' discovery, plaintiff can do no more than allege in the vaguest and most abstract terms a fraud of such magnitude, the Court can only conclude that the complaint has no basis in fact." 1991 Ruling at 7-8. Ruffolo immediately appealed, but this Court dismissed the appeal for lack of appellate jurisdiction because the judgment did not appear to dispose of the claims against Caserta and hence did not appear to be a final judgment. See Ruffolo I, 949 F.2d at 36.

Thereafter the district court dealt with matters concerning Caserta. In a Memorandum Opinion and Order dated September 1, 1992, 1992 WL 232084 ("1992 Ruling"), the court (a) ruled that there had been no effective service on Caserta, (b) adhered to its 1991 Ruling that the complaint failed to state a claim, and (c) reaffirmed its earlier determination "that this case is one in which no useful purpose would be served by granting the plaintiff the opportunity to serve an amended complaint," 1992 Ruling at 9. The court noted that

[a]lthough Ruffolo contends that he did not have "full discovery" because no depositions were taken in the arbitral proceeding, he fails to indicate why such depositions were apparently unnecessary to proceed to arbitration, but are now of critical importance. Ruffolo's failure to utilize a particular discovery device during two years of discovery in the prior arbitration is insufficient to support a finding that he did not conduct full discovery in...