approximately 1,022 shares (of Imperial), which shares would have had an aggregate market value on September 4, 1964, the date of the commencement of this action, of $ 3,066.00 (computed by taking the mean between the highest bid price and lowest asked price on September 4, 1964, as reported by the National Daily Quotation Service).'
In summary, plaintiff has failed in part (3) of the complaint to allege either a basis for the vacating of the New Jersey courts' dismissal of his action there, or an independent claim of fraud by which he was damaged. Thus defendants' motion to dismiss the complaint for failure to state a claim must be granted with respect to part (3) of the complaint.
Part (4) of the complaint alleges that the conduct of defendants in its totality violated 15 U.S.C. § 77a et seq., the Securities Act of 1933, giving plaintiff a cause of action under that statute. Since all the civil causes of action provided for by that statute deal exclusively with the offer or sale of securities, the only basis upon which plaintiff could have a claim thereunder was his purchase, in July of 1961, of the 4,000 shares of Hydro-Space stock as a result of the alleged misrepresentation in the prospectus issued at that time.
Section 77l provides a civil remedy to anyone who purchased a security as a result of a prospectus including an untrue statement of fact or omission of a material fact; but § 77m provides that no such action under § 77l shall be brought more than three years after the sale of the securities. Because plaintiff admittedly purchased his 4,000 shares of Hydro-Space in July, 1961, and his complaint was filed here on August 28, 1964, any claim he might have had under 15 U.S.C. § 77a et seq. is barred by the statute of limitations, and defendants' motion to dismiss the complaint on that ground, for failure to state a claim, must be granted in respect to part (4) of the complaint.
Part (5) of the complaint is a claim for punitive damages based on the allegations that the conduct charged in parts (1) through (4) of the complaint was wilful, intentional and malicious. Since parts (1) through (4) are to be dismissed for failure to state a claim, part (5), which depends for its existence on the existence of any or all of the claims in parts (1) through (4), must also be dismissed for the same reason.
Consequently, because parts (1) through (5) of the complaint fail to state a claim on which relief can be granted, the defendants' motion to dismiss the entire complaint for that reason is granted, with costs.
In light of this determination, it is unnecessary to decide the remaining motions of defendants as to improper venue, failure to comply with F.R.Civ.P. 23, and failure to make sufficient allegations to support the appointment of a receiver.
Let an appropriate order be submitted.