| Norex Petroleum Ltd. v Blavatnik |
| 2013 NY Slip Op 02848 [105 AD3d 659] |
| April 25, 2013 |
| Appellate Division, First Department |
| Norex Petroleum Limited, Appellant, v LeonardBlavatnik et al., Respondents. |
—[*1] White & Case LLP, New York (Owen C. Pell of counsel), and Sullivan & Cromwell,New York (Darryl A. Libow and Christopher M. Viapiano of counsel), forrespondents.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered September17, 2012, which, to the extent appealed from, granted defendants Leonard Blavatnik,Victor Vekselberg, Simon Kukes, Access Industries, Inc., Alfa Group Consortium,Renova, Inc., Oao Tyumen Oil Company and TNK-BP Limited's and defendant BPPLC's motions to dismiss the complaint as against them, and denied plaintiff's motion tosupplement the record on defendants' motions, unanimously affirmed, with costs.
On February 26, 2002, plaintiff, a resident of Alberta, Canada, commenced an actionagainst all but one of the instant defendants (BP) in the United States District Court forthe Southern District of New York, asserting violations of the Racketeer Influenced andCorrupt Organizations Act (RICO) (18 USC § 1961 et seq.; see NorexPetroleum Ltd. v Access Indus., Inc., 304 F Supp 2d 570 [SD NY 2004], vacatedand remanded 416 F3d 146 [2d Cir 2005], cert denied 547 US 1175 [2006]).Plaintiff amended the complaint, on December 21, 2005, to add BP as a defendant and toadd two claims under Russian law, although not as against BP.
The instant action, which plaintiff commenced in 2011, is barred as untimely underAlberta law, which limits the time to bring claims for the torts alleged by plaintiff towithin two years from the date on which the claimant first knew or should have knownthat an injury had occurred, that the injury was attributable to defendants, and that theinjury warranted bringing a proceeding (see RSA 2000, ch L-12, § 3), andwhich, more importantly, does not have a provision that would toll the limitations periodin favor of a previously filed action.
28 USC § 1367, which gives the federal courts supplemental jurisdiction overall other claims related to the claims in a federal action (28 USC § 1367 [a]) and,for any of those claims that are dismissed, tolls the limitations period for 30 days afterthey are dismissed, "unless State law provides for a longer tolling period" (28 USC§ 1367 [d]), is not applicable to this action, because New York law provides for atolling period of six months (see CPLR 205 [a]). CPLR 205 (a) could not saveplaintiff's claims in any event, because New York's borrowing statute requires the courtsto apply Alberta's limitations period (see CPLR 202; Global Fin. Corp. vTriarc Corp., 93 NY2d 525, 529 [1999]). Alberta's limitations periods for plaintiff'sstate law [*2]and Russian-law claims expired, at thelatest, in 2004 and 2007, respectively.
Even if 28 USC § 1367 applied to plaintiff's claims, the claims would stillhave to be dismissed. Plaintiff first asserted its state-law claims in 2011, more than eightyears after the original (federal) complaint was filed, and more than five years after thecomplaint was amended. Plaintiff first asserted its two Russian-law claims more than twoyears after the original complaint was filed. Nor, contrary to its argument, can plaintiffavail itself of the relation-back doctrine to add six entirely new state-law claims eightyears after filing the original federal complaint, five years after amending that complaint(when presumably it knew it had state-law claims), and after its federal complaint wasdismissed for failure to state a claim—a dismissal on the merits (see NorexPetroleum Ltd. v Access Indus., Inc., 631 F3d 29, 32 [2d Cir 2010]), which barsplaintiff from bringing the state claims that it alleges "are based upon the sametransaction or occurrence or series of transactions or occurrences it pled in its federalaction."
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Andrias, J.P., Saxe, DeGrasse, Richter and Gische, JJ.