12-4259-cv
Adams v. Deutsche Bank AG

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
16th day of July, two thousand thirteen.

Present:    ROSEMARY S. POOLER,
            RAYMOND J. LOHIER, JR.,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

SCOTT ADAMS, BLACKWOOD VENTURES, LLC,
WILLIAM G. NESBITT, MURCHISON VENTURES, LLC,
STEVEN J. UMBERGER, QUEETS VENTURES, LLC,

                                                Plaintiffs-Appellants,

                            -v-                                                12-4259-cv

DEUTSCHE BANK AG, DEUTSCHE BANK SECURITIES INC.,

                                    Defendants-Appellees.*
_____________________________________________________

Appearing for Appellants:         Brian G. Isaacson, Isaacson Law Firm, P.L.L.C., Seattle, WA

Appearing for Appellees:          Keith Blackman (Joshua C. Klein, Allan N. Taffet, on the brief),
                                  Duval & Stachenfeld LLP, New York, NY


        Appeal from the United States District Court for the Southern District of New York
(Sullivan, J.).


       *
           The Clerk of the Court is directed to amend the caption as above.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Scott Adams, Blackwood Ventures, LLC, William G. Nesbitt, Murchison Ventures, LLC,
Steven J. Umberger, and Queets Ventures, LLC (together, the “Adams Plaintiffs”) appeal from
the September 24, 2012 judgment of the United States District Court for the Southern District of
New York (Sullivan, J.) dismissing their second amended complaint in its entirety. We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

       The district court, sitting in diversity, looked to New York law to determine if plaintiffs’
claims were time barred. New York’s borrowing statute provides that:

               An action based upon a cause of action accruing without the state
               cannot be commenced after the expiration of the time limited by
               the laws of either the state or the place without the state where the
               cause of action accrued, except that where the cause of action
               accrued in favor of a resident of the state the time limited by the
               laws of the state shall apply.

N.Y. C.P.L.R. § 202. Thus, “when a nonresident plaintiff sues upon a cause of action that arose
outside of New York, the court must apply the shorter limitations period, including all relevant
tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued.”
Stuart v. Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir. 1998). Where, as here, a claim alleges
only economic injury, the claim accrues in the state where the plaintiff resides. Global Fin.
Corp. v. Triarc Corp., 93 N.Y.2d 525, 529 (1999).

         For the first time on appeal, the Adams Plaintiffs argue that Blackwood Ventures, LLC,
Murchison Ventures, LLC, and Queets Ventures are residents of Delaware, which recognizes
cross-jurisdictional tolling. See Blanco v. AMVAC Chem. Corp., No. N11C–07–149 JOH, 2012
WL 3194412 (Del. Super. Ct. Aug. 8, 2012). We conclude that this argument is forfeited, as we
do not consider a legal theory not raised before the district court “[i]n the absence of ‘manifest
injustice.’” Robinson v. Gov’t of Malaysia, 269 F.3d 133, 146 (2d Cir. 2001).

        Plaintiffs are Florida residents. Florida provides the shorter statute of limitations, and
thus governs the timeliness of the Adams Plaintiffs’ claims. Florida’s statute of limitations for
fraud and fiduciary duty claims is four years, running from when the facts giving rise to it were
discovered or should have been discovered with the exercise of due diligence. See Fla. Stat. § §
95.11(3)(j), 95.11(3)(p), 95.031(2)(a). The statute of limitations for a breach of contract claim is
five years, running from the date of accrual. Fla. Stat. § 95.031(1), 95.11(2)(b). Critically,
Florida does not allow tolling during the pendency of class action lawsuits no matter where they
are filed. See Fla. Stat. § 95.051(2) (“A disability or other reason does not toll the running of any
statute of limitations except those specified in this section, § 95.091, the Florida Probate Code,
or the Florida Guardianship Law.”).



                                                  2
       Because Florida so clearly prohibits tolling during the pendency of class action lawsuits,
regardless of where filed, the Adams Plaintiffs’ claims are time-barred. See, e.g., Becnel v.
Deutsche Bank, AG, 507 F. App’x 71, 73 (2d Cir. Jan. 11, 2013).

        We have considered the remainder of the Adams Plaintiffs’ claims and find them to be
without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Each side
to bear its own costs.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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