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FLECK v. CABLEVISION VII

November 24, 1992

DAVID FLECK, et al., Plaintiff,
v.
CABLEVISION VII, INC., et al., Defendant.



The opinion of the court was delivered by: STANLEY S. HARRIS

MEMORANDUM ORDER

 Before the Court is plaintiffs' amended and renewed motion for class certification. For the reasons stated below, the Court denies plaintiffs' motion.

 Background

 Plaintiffs Fleck, Couchenour, and Warburton were limited partners in Cablevision Associates VII, an Iowa limited partnership that acquired and operated cable television systems. Defendant Cablevision VII, Inc., a wholly-owned subsidiary of defendant Heritage Communications, was the general partner. Defendant Telecommunications, Inc., had merged with Heritage Communications in 1987.

 This action arose out of defendants' purchase of Cablevision Associates VII in 1988. *fn1" On May 3, 1990, plaintiffs Fleck and Couchenour filed this suit, framed as a class action, alleging improprieties in connection with the purchase. Specifically, plaintiffs alleged that defendants violated Sections 10(b), 14(a), 14(e), and 20(a) of the Securities Exchange Act of 1934, and Rules 10b-5 and 14a-9 thereunder. Plaintiffs also alleged pendent state law claims for breach of fiduciary duty.

 On April 10, 1992, this Court denied plaintiffs' motion for class certification on the grounds that their claims were not typical of the claims of the proposed class. On July 5, 1991, plaintiffs filed a motion for leave to amend the complaint to add Warburton as a plaintiff. On July 23, 1991, they filed a renewed motion for class certification, based on the addition of Warburton. This Court granted defendants leave to respond to the renewed motion for class certification after resolution of the motion to amend.

 On August 25, 1992, this Court granted plaintiffs' motion for leave to amend the complaint to add Warburton as a plaintiff. In that Opinion, this Court found that although Warburton's securities claim was not filed within the applicable two-year statute of limitations, it related back to the date of the original complaint under Fed. R. Civ. P. 15(c), and thus was not barred by the statute of limitations. See Opinion of August 25, 1992, at 7-9. Although this Court allowed plaintiffs leave to amend the complaint to add Warburton's individual claims, it did not address whether Warburton's claim in her capacity as a potential class representative was time-barred. Rather, it specifically directed defendants to file a response to plaintiffs' renewed motion for class certification within 14 days of the Opinion. See Order of August 25, 1992.

 Discussion

 This Court already has found that Warburton filed her claims after the two-year statute of limitations had run. See Opinion of August 25, 1992, at 6-7. Warburton's claim in her capacity as a proposed class representative would not be time-barred, however, if it relates back to the original complaint under Fed. R. Civ. P. 15(c). Nor would it be time-barred if the statute of limitations was tolled for her class claim during the pendency of the first petition for class certification.

 The Court finds that the "relation back" rule of Fed. R. Civ. P. 15(c) does not govern the issue of whether a late claim properly can be pursued on behalf of a class under Fed. R. Civ. P. 23. Rule 15(c) states that:

 An amendment of a pleading relates back to the date of the original pleading when . . .

 (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or

 Although this rule on its face addresses changing only the party "against whom a claim is asserted," it extends by analogy to amendments changing the plaintiff. Stoppelman v. Owens, 580 F. Supp. 944, 946 (D.D.C. 1983)(citing Fed. R. Civ. P. Advisory Committee Note of 1966). No Court has extended this analogy further and applied the "relation back" doctrine to this circumstance, where a new potential class representative seeks to renew a motion for class certification after the court previously ...


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