Fernandez et al v. UBS AG et al, No. 1:2015cv02859 - Document 127 (S.D.N.Y. 2016)

Court Description: OPINION AND ORDER: re: 84 MOTION to Dismiss the Amended Class Action Complaint filed by Popular Securities, LLC, Banco Popular de Puerto Rico, 90 MOTION to Dismiss Plaintiffs' Amended Class Action Complaint filed by UBS A.G., UBS Trust Company of Puerto Rico, UBS Financial Services Incorporated of Puerto Rico, UBS Bank USA, UBS Financial Services Inc., Carlos V. Ubinas, 85 MOTION to Dismiss Plaintiffs' Amended Class Action Complaint filed by Miguel A. Ferrer. Counts I and Count II are DISMISSED with prejudice as time barred pursuant to 31 L.P.R.A. § 5298(2). Counts III and IV are DISMISSED with prejudice in part and without prejudice in part. Vela's 2011 tort claims and Toro's tort claims are dismissed with prejudice as time-barred pursuant to PRUSA. Vela's 2012 tort claims are dismissed without prejudice for failing to meet the requirements of Fed. R. Civ. P. 9(b). Vela is granted leave to replead Cou nts III and IV as they pertain to his 2012 Fund purchases. The UBS Defendants' motion to dismiss Count V is GRANTED IN PART and DENIED IN PART. Plaintiff Montes' breach of the implied covenant of good faith and fair dealing claim is DISMISS ED with prejudice as time-barred pursuant to PRUSA. Plaintiffs Fernandez's, Schreiner's, Santana's and Viera's breach of the implied covenant of good faith and fair dealing claims are DISMISSED without prejudice for failing to mee t the requirements of Fed. R. Civ. P. 9(b). Plaintiffs Santana's and Viera's breach of contract claims premised on the UBS Defendants' failure to conduct asuitability analysis are DISMISSED with prejudice for failure to state a claim p ursuant to Fed. R. Civ. P. 12(b)(6). However, the UBS Defendants' motion to dismiss plaintiffs Fernandez's, Montes', and Schreiner's breach of contract claims is DENIED to the extent those plaintiffs' breach of contract claim s are premised on the breach of an express provision of their contracts obliging the UBS Defendants to conduct a suitability analysis. The Popular Defendants' motion to dismiss Count VI is similarly GRANTED IN PART and DENIED IN PART. Vela' ;s 2011 claim and Toro's claims for breach of the implied covenant of good faith and fair dealing are DISMISSED with prejudice as time-barred pursuant to PRUSA. Vela's 2012 claim for breach of the implied covenant of good faith and fair dea ling is DISMISSED without prejudice for failing to meet the requirements of Fed. R. Civ. P. 9(b). Toro's breach of contract claims premised on Popular Securities' failure to conduct a suitability analysis is DISMISSED with prejudice for fai lure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). However, the Popular Defendants' motion to dismiss Vela's breach of contract claim is DENIED to the extent his breach of contract claim is premised on the breach of an express prov ision of the contract obliging Popular Securities to conduct a suitability analysis. Thus the UBS Defendants' motion to dismiss (Dkt. No. 90) is GRANTED IN PART and DENIED IN PART; the Popular Defendants' motion to dismiss (Dkt. No. 84) is GRANTED IN PART and DENIED IN PART; and Ferrer's motion to dismiss (Dkt. No. 85) is GRANTED in its entirety. If plaintiffs intend to replead (1) Counts III and IV as they pertain to Vela's 2012 Fund purchases, (2) plaintiffs Fernandez' s, Schreiner's, Santana's, and Viera's breach of the implied covenant of good faith and fair dealing claims in Count V, or (3) Vela's 2012 claim in Count VI for breach of the implied covenant of good faith and fair dealing, they s hould do so within 21 days of this order. If plaintiffs do not intend to attempt to replead those allegations, they should notify the Court in writing in order for the Court to establish a schedule for the remainder of the litigation. SO ORDERED. (Signed by Judge Sidney H. Stein on 12/07/2016) (ama) Modified on 12/7/2016 (ama).