information he received from his broker because of the pressures of running his own business. See, e.g., Filloramo Deposition at 136-137. Defendants counter that Filloramo was an active and sophisticated investor, and that the 16 transactions contested here represent a small portion of the roughly 200 transactions that Johnston Lemon brokered for him over a 10 year period. Filloramo Deposition, Exhibit 7.
I. Statute of Limitations
A. The Common Law Claims: Accrual
The parties have agreed that the three year statute of limitations under 4 D.C. Code Ann. § 12-301(8) (1981) is the applicable period for all of plaintiff's common law claims. King v. Kitchen Magic, Inc., 391 A.2d 1184, 1186 (D.C. 1987) (fraud); Riddell v. Riddell Washington Corp., 680 F. Supp. 4, 10 (1987) (breach of fiduciary duty, where plaintiff seeks money damages); Prouty v. National R.R. Passenger Corp., 572 F. Supp. 200, 206 (D.D.C. 1983)(negligence). Under § 12-301(8), the three year limitation period begins to run "from the time the right to maintain the action accrues." Since Filloramo filed this suit on May 28, 1987, all his common law claims that accrued by May 28, 1984 are barred, absent equitable tolling.
In determining when Filloramo's common law claims "accrued" for statute of limitations purposes, two separate issues must be addressed. First, Filloramo's claims are based on several transactions occurring over a three year period, some of which fell within the limitations period while some did not. The Court must therefore determine whether to regard each transaction separately in applying § 12-301(8), or whether they should be taken as a whole. Secondly, injuries suffered as a result of stock transactions take time to develop. Since injury as well as wrongful conduct must be present for a cause of action to accrue, Weisberg v. Williams, Connolly & Califano, 390 A.2d 992, 994 (D.C. 1978), the Court must determine how much injury is sufficient for the common law causes of action to accrue, and then determine when such injury occurred. For the reasons set out below, the Court finds that each transaction should be regarded separately before applying the statute of limitations. Further, the Court finds that sufficient injury occurred prior to May 28, 1984, resulting from the transactions that occurred prior to that date, for Filloramo's claims on those transactions to have accrued by that date.
When a lawsuit is based on wrongful conduct continuing over a period of time, a plaintiff can ordinarily recover only for damages resulting from that wrongful conduct which occur within the statutory period. See, e.g., Hanover Shoe, Inc. v. United States Machinery Corp., 392 U.S. 481, 502 n.15, 20 L. Ed. 2d 1231, 88 S. Ct. 2224 (1967) reh'g denied, Hanover Shoe, Inc. v. United Shoe Machinery Corp., 393 U.S. 901, 89 S. Ct. 64, 21 L. Ed. 2d 188 (1968) and accompanying text. However, under the "continuing tort" doctrine a plaintiff can recover for all damages resulting from all of defendant's wrongful conduct, provided any of it occurred within the statutory period. The parties have not cited, and the Court has not found any local law applying the doctrine; however, it has been applied by the federal court of appeals here. Page v. United States, 234 App. D.C. 332, 729 F.2d 818 (D.C. Cir. 1984).
In Page, the plaintiff sued the Veteran's Administration under the Federal Tort Claims Act for subjecting him to harmful drugs during a course of treatment from 1961 to 1980, claiming severe physical and mental injury. 729 F.2d at 819. The Court held that his claims arising prior to 1972 were barred by res judicata, based on an earlier adjudication. 729 F.2d at 821. But Page was not barred from bringing a claim for the eight years of treatment from 1972 until 1980, despite the two years limitation period.
729 F.2d at 821. Said the Court, "We view the injury claimed by Page as gradual, resulting from the cumulative impact of years of allegedly tortious drug treatment. To us it seems unrealistic to regard each prescription of drugs as the cause of separate injury, or as a separate tortious act triggering a new limitation period." 729 F.2d at 822-823.
The present case is distinguishable. Filleramo's sale of Manor Care in December, 1982 involved 8,000 shares worth over a quarter of a million dollars. Further, each purchase of Johnson Electronics and Megadata involved at least 1,000 shares, costing at least $ 7,750 and often much more. The harm resulting from each separate transaction is measured in the thousands of dollars, and therefore it would appear they should be analyzed separately for statute of limitation purposes. See Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 128 (7th Cir. 1972) (employees' eleven purchases of employer's stock regarded by Court as independent transactions for statute of limitations purposes, since if purchases were alleged in separate counts of civil complaint, recovery could be had as to each; or if listed as separate counts in criminal indictment, conviction could be had as to each).
Nonetheless, Filloramo cites two cases in support of applying the continuing tort doctrine here, Gaudette v. Panos, 644 F. Supp. 826 (D. Mass 1986), modified on other grounds, 650 F. Supp. 912 (1987), rev'd on other grounds, 852 F.2d 30 (1988), and Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983) (Posner, J.). However, it appears that Gaudette should more properly have been decided on the ground that defendant concealed plaintiffs' cause of action. See 644 F. Supp. at 829-831, 837-838. Taylor, on the other hand, was an action for copyright infringement, and its holding that plaintiff could collect for damages on infringing sales occurring prior to the limitations period appears to be at odds with a Court of Appeals decision here. Underwater Storage, Inc. v. United States Rubber Co., 125 App. D.C. 297, 371 F.2d 950, 955 (D.C. Cir. 1966) (plaintiff could recover in trade secret misappropriation case where original acquisition occurred prior to limitations period, for subsequent usage so long as such usage occurred within the limitations period).
Therefore, since each transaction here resulted in significant injury to Filloramo, the Court will analyze each separately for determining when the statute of limitations began to run. In particular, the Court will focus on the sale of Manor Care stock in late 1982, and the purchases of Johnson Electronics and Megadata Stocks occurring prior to May 28, 1984. n3
n3 Filloramo's purchases were as follows:
March 9, 1983 2,000 shares at 10.75 = $21,500
September 14, 1983 1,000 shares at 9.125 = $ 9,125
September 23, 1983 2,000 shares at 9 = $ 18,000
January 24, 1983 1,000 shares at 12.375 = $ 12,375
June 2, 1983 1,000 shares at 13.375 = $ 13,375
October 25, 1983 1,000 shares at 11.25 = $11,250
February 24, 1984 1,000 shares at 10 = $ 10,000
Filloramo Deposition Exhibit 7
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