EFTA01363296.pdf

Page 6 91 F.3d 385, *; 1996 U.S. App. LEXIS 19807, **; 35 Fed. R. Serv. 3d (Callaghan) 1352 OPINION r386] MINER, Circuit Judge: Plaintiffs appeal from an order of the United States District Court [*.2] for the Southern District of New York (McKenna, J.) denying their motion for leave to amend their complaint to add additional plaintiffs. The district court found that the claims of the additional plaintiffs did not relate back to the date of the filing of the complaint pursuant to Fed. R. Civ. P. 15(c) and therefore that the claims of the additional plaintiffs were time-barred under the applicable statutes of limitations. For the reasons set forth below, we dismiss the appeal. BACKGROUND On April 27, 1990, plaintiffs-appellants Roselyn Kahn, Jan Kahn, Craig Kahn, Four Seasons Manufacturing Co., Inc. Pension Trust, and Jan and Craig's Window Factory, Ltd. (together, the "Plaintiffs") commenced this action against defendants Bruce C. Black, Thomas J. Greene, Gruntal & Co., Inc. ("Gruntal"), Richard Kahn, Sheppard Messing, Woodmere Securities, Inc. ("Woodmere"), Chase Manhattan Bank, N.A. ("Chase"), Jeffrey P. Berg, Michael R. Matthias, and Matthias & Berg (together, the "Defendants"). In their complaint, the Plaintiffs alleged that the Defendants had engaged in various schemes to defraud them and others. Pleading six separate causes of action, the Plaintiffs alleged: (1) that[*.3] the Defendants had violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.; (2) that all the Defendants except for Gruntal had violated section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b); (3) that all the Defendants except for Gruntal had committed common law fraud; (4) that Black, Messing, Greene, and Chase had committed common law conversion; (5) that Berg, Matthias, and Matthias & Berg had committed legal malpractice; and (6) that Berg, Matthias, Matthias & Berg, Black, and Woodmere had committed common law constructive fraud. In July of 1990, the Defendants moved to dismiss the complaint. On March 29, 1991, the district court dismissed the Plaintiffs' RICO claims against Gruntal and Chase, dismissed all the claims of Roselyn Kahn p387] against Berg, Matthias, and Matthias & Berg, and dismissed the section 10(b) claims against Berg, Matthias, Matthias & Berg, and Chase. However, the district court granted the Plaintiffs leave to replead the section 10(b) claims against each of the Defendants. Accordingly, on April 29, 1991, the Plaintiffs filed an [** amended complaint (the "first amended complaint"), setting forth the 4] same six causes of actions alleged in the original complaint. In March of 1995, Chase moved for summary judgment on the section 10(b) claim and the state law claims against it. On April 6, 1995, the Plaintiffs moved for leave to amend the first amended complaint, pursuant to Fed. R. Civ. P. 15(a), to add Laurence LoScalzo, Constance LoScalzo, Kenneth Boklan, Dix Hills Equities Group, Inc., and Dix Hills Air (together, the "Additional Plaintiffs") as parties. The proposed second amended complaint alleged that Black and the other Defendants defrauded the Additional Plaintiffs by For internal use only CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0053246 CONFIDENTIAL SDNY_GM_00199430 EFTA01363296