The opinion of the court was delivered by: HOGAN
Thomas F. Hogan, U.S. District Judge
Plaintiff filed the present action on April 3, 1987, alleging various acts of fraud and conspiracy allegedly committed by defendants in a scheme to defraud him. Specifically, plaintiff alleged in his original complaint that defendants violated sections of the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. §§ 1961-1968; engaged in common law fraud and conspiracy to defraud; violated local law governing the sale of collateral, D.C. Code § 28:9-504; engaged in common law conversion; breached contract; breached fiduciary duties; and wrongfully transferred shares of his stock.
Presently before the Court is defendants' motion for summary judgment which raises the statute of limitations, as well as addresses the merits of the case. In consideration of defendants' motion and supporting memoranda, the opposition thereto, the copious depositions and affidavits filed by both sides, oral argument, and the entire record of the case, the Court, for the following reasons, finds that plaintiff's cause of action is barred by the statute of limitations and grants defendants' motion for summary judgment.
Plaintiff Roland Riddell brought this action against two wholly family-owned corporations, Riddell Washington Corporation ("RWC") and Riddell Properties, Inc. ("RPI"), and various members of his own family.
The facts underlying the cause of action have their genesis in the spring of 1978. Plaintiff sought a $ 150,000 loan from Security National Bank ("the Bank"). Plaintiff needed the money to keep his mortgage banking company, of which he was president, afloat. Roland Riddell Deposition at 30 ("Roland Dep.").
In an attempt to secure the loan, plaintiff obtained an appraisal by Joseph Donnelly ("Donnelly appraisal") of the properties owned by RWC and RPI.
The plaintiff admits he secured the Donnelly appraisal to value his own stock.
Roland Dep. at 44-45. The Donnelly appraisal valued the properties, subject to the applicable ground leases, at $ 1,257,000 (1730 K Street) and $ 597,000 (1776 K Street). As a condition of the loan, the bank required plaintiff to pledge his family stock in RWC and RPI and obtain a "bid/buy-back" agreement from the corporations wherein the corporations committed to purchasing plaintiff's stock in the event of default and foreclosure.
At plaintiff's request, a special meeting of the shareholders of RWC and RPI was held on December 29, 1978. Plaintiff proposed the bid/buy-back provision to the shareholders and the shareholders refused to consent to the agreement. Plaintiff's sister, Sally Arthur, urged plaintiff to not pledge his stock for the bank loan. Sally Arthur Aff. para. 7. In fact, she informed plaintiff that the rents would increase significantly in 1981 when the rents would be renegotiated. Id. Sally Arthur told plaintiff that in light of the expected increased income, the dividends to shareholders would increase and the corporations would be in a better position to entertain the possibility of loaning the money to the plaintiff. Id.6 Plaintiff ignored this advice and stressed the urgency of his need for the money and his willingness to sell his stock to outsiders. Jean Riddell Aff. para. 8; Sally Arthur Dep. at 25. Thereupon, Jean Riddell, plaintiff's mother, offered to loan the $ 150,000 to plaintiff. Plaintiff executed a 90-day promissory note to his mother in January, 1979, secured by his stock in RWC and RPI. Plaintiff failed to pay the note when due in April, 1979. Jean Riddell claims she informed plaintiff in the early summer of 1981 of her intent to foreclose on the note. Plaintiff claims he never received notice.
Jean Riddell foreclosed on the note in the summer of 1981. Buchanan & Co. performed in October, 1981, a valuation analysis ("Buchanan valuation"). The Buchanan valuation set a range of values for the stock. On November 22, 1981 the shareholders of RWC and RPI met and voted that the corporations should purchase the stock from Jean Riddell for $ 106,936. Plaintiff maintains he learned of the sale to the corporation in the late winter of 1982 or the early spring of 1983. Roland Dep. at 33.
At that time, plaintiff admits to seeing the Buchanan valuation. Roland Dep. at 35. Evidence exists which plaintiff does not refute that plaintiff expressed his displeasure in early 1983 with the sale of the stock to the corporation and the price for which the corporation purchased the stock. Jean Riddell Dep. at 13-14; Jean Riddell Aff. para. 7; Marise Reynolds Aff. paras. 6-10; Joan Baer Aff. para. 7; Roland Dep. at 66.
Eventually, the corporations sold the properties on December 31, 1986 for $ 13 million. In February, 1987 plaintiff learned of the sale and instituted suit on April 3, 1987.
II. Standard of Review for Summary Judgment Motions
Rule 56(c) of the Federal Rules of Civil Procedure provides that a court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." The United States Supreme Court recently provided significant guidance as to those circumstances when summary judgment is appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corporation v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The Court stated that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issues of material fact." Anderson, 106 S. Ct. at 2510 (emphasis in original). The party moving for summary judgment has the burden of demonstrating that there is no genuine issue of fact. Id. at 2514. The party opposing the summary judgment motion, however, must present "affirmative evidence" in order to defeat a properly supported summary judgment motion. Id. The Court shall grant a properly supported summary judgment motion if the moving party demonstrates a lack of genuine triable issues of material fact. Celotex, 106 S. Ct. at 2555.
In the present case, the sole issue presently before the Court is when plaintiff's cause of action accrued triggering a requirement to exercise due diligence to investigate the transactions of which plaintiff complains. In the context of the running of the statute of limitations in a cause of action for fraud, summary judgment is appropriate in circumstances that demonstrate a plaintiff's failure to exercise due diligence upon acquisition of sufficient knowledge to amount to the accrual of a claim. See Bender v. Rocky Mountain Drilling Associates, 648 F. Supp. 330, 335 (D.D.C. 1986); see also Maggio v. Gerard Freezer & Ice Company, 824 F.2d 123, 128 (1st Cir. 1987); Gieringer v. Silverman, 731 F.2d 1272, 1277 (7th Cir. 1984) (citing cases in which federal courts granted summary judgment for failure to satisfy due diligence requirement under statute of limitations).
III. Accrual of RICO and Fraud and Conspiracy Claims
The statute of limitations period for plaintiff's RICO claim accrues on the date the plaintiff "discovered or, should have discovered through the exercise of reasonable diligence, the fraudulent activity in question." Bender, 648 F. Supp. at 334 (quoting Cross v. Price Waterhouse & Co., [1982-83 Transfer Binder]Fed. Sec. L. Rep. (CCH) para. 99,153 at 95,568 (D.D.C. 1983)). Likewise, plaintiff's claims of fraud and conspiracy to defraud accrue when the plaintiff "ascertain[ed], or with the exercise of due diligence should [have] ascertain[ed], the material facts upon which the claim is based." Hartford Life Insurance Company v. Title Guarantee Company, 172 U.S. App. D.C. 156, 520 F.2d 1170, 1174 (D.C. Cir. 1975). In the event the plaintiff did not actually discover the alleged fraud, as is the situation presently before the Court, the Court inquires whether "'storm warnings' of the possibility of fraud trigger[ed] a plaintiff's duty to investigate in a reasonably diligent manner." Maggio v. Gerard, 824 F.2d at 128. The Court conducts an objective inquiry to determine if the plaintiff possessed such knowledge as would alert a reasonable investor to the possibility of fraud. If the Court determines that the plaintiff possessed sufficient knowledge to trigger the due diligence requirement, the Court examines the circumstances of the case to determine whether plaintiff actually exercised due diligence. Id.; see also Bender, 648 F. Supp. at 335 (United States District Court for the District of Columbia grants summary judgment based on failure to bring cause of action within statute of limitations); Gieringer, 731 F.2d at 1277.
Plaintiff attempts to argue that defendants fraudulently concealed facts that prevented him from discovering the alleged fraud. These actions, plaintiff claims, should toll the statute of limitations. In this jurisdiction, the Court does not address a claim of fraudulent concealment if the Court finds that the plaintiff was on notice of the wrongs of which he complains. Bender, 648 F. Supp. at 335 (citing Foltz v. U.S. News & World Report, Inc., 627 F. Supp. 1143, 1150 (D.D.C. 1986)). In the context of fraudulent concealment, notice consists of either 1) when a plaintiff is apprised of facts unique to a claim (actual notice) or 2) when a plaintiff has not exercised due diligence in conducting an inquiry upon knowledge of facts that indicate a possibility of a cause of action (inquiry notice). Foltz, 627 F. Supp. at 1150. In a related argument, plaintiff appears to argue that under a general doctrine of equitable tolling, the statute of limitations is tolled. The doctrine of equitable tolling is not applicable if a plaintiff has a reasonable basis to suspect a wrong and fails to exercise due diligence to investigate the matter. Bender, 648 F. Supp. at 335.
In a final attempt to toll the statute of limitations, plaintiff vigorously argues that defendants owed plaintiff a fiduciary duty to explicitly inform plaintiff of the increase in the properties' rent of the buildings and the accompanying increase of value in the stock. In a case closely analogous to the present case, the First Circuit held that even if defendants owed plaintiff a fiduciary duty, the plaintiff was not excused from inquiring into facts that plaintiff admitted he knew. See Maggio v. Gerard Freezer & Ice Co., 824 F.2d 123, 129 (1st Cir. 1987). In Maggio, plaintiff, against his family's advice, sold his stock in a family corporation back to the corporation in April, 1972. At the time of the sale, plaintiff's stock represented 12% ownership of the corporation. Under a 1964 stock repurchase agreement drafted by plaintiff's father, plaintiff's stock eventually would represent one third of the corporation once the corporation repurchased stock owned by plaintiff's uncles and cousin. Plaintiff brought suit in September, 1985 when plaintiff claimed he discovered the 1964 stock repurchase agreement. The First Circuit held that plaintiff's failure to investigate the possibility of fraud in the 1972 sale in light of facts known to plaintiff in 1972 demonstrated a lack of due diligence.
Specifically, the Maggio court stated that "plaintiff had ample information at his disposal to suggest that his stock was worth significantly more than the amount offered by Gerard Freezer and that the offer may have been an attempt to defraud him . . . [such that] a reasonable investor would have proceeded carefully and sought to learn more." Maggio, 824 F.2d at 129.
The Maggio facts are closely analogous to the facts presently before the Court. Both cases involve family owned and operated businesses in which the corporation repurchased stock. Both plaintiffs brought suit many years after the transactions transpired which underlie the basis for the claims. Both cases involve the nature of plaintiff's knowledge which might give rise to a due diligence requirement. Like plaintiff in Maggio, plaintiff in the case at bar admits to possessing knowledge of certain events. Specifically, Roland Riddell admits to knowing in the late winter of 1982 or the early spring of 1983 that his stock had been foreclosed upon and sold to the corporation. Complaint para. 24; Roland Dep. at 33, 93, 97, 121, 128-29. Plaintiff also believed that the price for which the corporation purchased the stock was too low, a complaint which he voiced to various defendants. Roland Dep. at 100, 124; Jean Riddell Dep. at 14; Joan Baer Aff. para. 7; Marise Reynolds Aff. paras. 6-10.
Similar to the facts in Maggio, evidence exists that at the meeting on December 29, 1978, Sally Arthur advised ...