Wultz v. Bank of China Ltd.
306 F.R.D. 112
S.D.N.Y.2013Background
- A terrorist attack in Tel Aviv on April 17, 2006 injured Yekutiel Wultz and killed Daniel Wultz on May 14, 2006.
- Four Wultz family members sued Bank of China (BOC) on August 28, 2008 for international terrorism claims under the Anti-terrorism Act and non-federal claims under Israeli/Chinese law.
- This court previously dismissed most non-federal claims in 2012, leaving one vicarious liability claim.
- BOC moved to invoke New York's borrowing statute to assert a limitations defense on the remaining non-federal claim.
- The court must decide whether the borrowing statute applies, what limitations period governs the claim, and whether tolling applies.
- The court holds the remaining non-federal claim is time-barred and grants BOC’s motion to amend and dismiss the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of New York borrowing statute | Wultz plaintiffs contend NY law should apply. | BOC argues the borrowing statute requires applying the shorter period of NY or Israel. | Borrowing statute applies; use shorter limitations period from NY or Israel. |
| Governing limitations period for vicarious liability | The claim should be analyzed under Chinese/Israeli law analogs, not NY. | The claim is best understood as aiding-and-abetting, governed by the underlying tort's period. | Underlying tort is aiding-and-abetting; limitations are two years for wrongful death. |
| Accrual location for borrowing statute | Injury occurred abroad; accrual should follow foreign law. | Injury occurred in Israel; accrual occurs there for borrowing purposes. | Accrual occurred in Israel; Israel has a seven-year period; NY shorter periods apply. |
| Equitable tolling applicability | Fact discovery should determine tolling based on concealment by BOC. | No concrete facts show active concealment; tolling improper as a matter of law. | No equitable tolling; plaintiffs failed to show concealment or other tolling grounds. |
Key Cases Cited
- Stuart v. American Cyanamid Co., 158 F.3d 622 (2d Cir.1998) (borrowing statute applicability and choice among limitations)
- Cuccolo v. Lipsky, Goodkin & Co., 826 F.Supp.763 (S.D.N.Y.1993) (analogy-based choice of limitations period)
- Marketxt Holdings Corp. v. Engel & Reiman, P.C., 693 F.Supp.2d 387 (S.D.N.Y.2010) (treating aiding-and-abetting limitations as tied to underlying tort)
- Geren v. Quantum Chem. Corp., 832 F.Supp.728 (S.D.N.Y.1993) (when primary violation barred by limitations, aiding-and-abetting claim fails)
- Hakala v. JP Morgan Secs., Inc., 356 F.Supp.2d 355 (S.D.N.Y.2005) (tolling principles and related dicta)