The opinion of the court was delivered by: SMITH
MEMORANDUM OPINION AND ORDER
In this complex and protracted securities fraud litigation, William L. Schwartz has recently filed a class action complaint against Westinghouse Electric Corp., its subsidiaries, its underwriters and its auditors, as well as a number of individual officers and directors associated with Westinghouse (No. 97-309, dkt. no. 1). Before the court are the motions of Westinghouse, the underwriters and the auditors to dismiss the complaint, docketed in the lead Westinghouse case at no. 91-354 as pleading numbers 239/254, 238, and 243, respectively. For the following reasons, the motions are granted.
As this case enters its seventh year of litigation, I consider it unnecessary to reiterate either its detailed factual background or its tortuous procedural history, the latter of which presently spans some 273 docket entries and has been set forth already by both this court and the Court of Appeals for the Third Circuit. See In re Westinghouse Securities Litig., 832 F. Supp. 948 (W.D. Pa. 1993), aff'd in part and rev'd in part, 90 F.3d 696 (3d Cir. 1996). Suffice it to say that, in 1991, the lead plaintiffs filed this action on behalf of themselves and a class of persons who purchased Westinghouse stock between March 28, 1989 and October 22, 1991 through a public offering. They alleged that some or all defendants committed securities fraud in violation of sections 10(b) and 20 of the 1934 Securities Exchange Act, sections 11, 12(2) and 15 of the 1933 Securities Act, and the tort of negligent misrepresentation under state law.
In 1993, I dismissed the plaintiffs' complaint, most of it with prejudice. Westinghouse, 832 F. Supp. at 989. I dismissed count 1 and part of count 6, however, with leave to amend. Count 1 involved the plaintiffs' section 10(b) and 20 allegations, while count 6 contained plaintiffs' negligent misrepresentation claim. Plaintiffs amended their complaint, but included all the claims that had been dismissed with prejudice. I again dismissed it on January 20, 1995, this time with leave to amend count 1. I concluded that the complaint failed to satisfy Fed. R. Civ. P. 12(b)(6) (failure to state a claim upon which relief may be granted), Rule 9(b) (failure to plead allegations of fraud with sufficient particularity), and Rule 8(a)(2) (failure to make a short and plain statement of the claim). Plaintiffs then chose to stand upon their complaint and appeal from my ruling, rather than amend the complaint in accordance with this court's directive and deferring their appeal until after a final determination on the merits. I subsequently dismissed count 1 with prejudice and closed the case. Plaintiffs' motion for class certification was accordingly dismissed as moot.
On appeal, the Third Circuit reversed the dismissal of certain portions of counts 1, 2 and 3, and remanded those for further proceedings on the merits. Those proceedings are currently ongoing. The court affirmed, however, my with-prejudice dismissal of count 1 under Rule 8, noting:
The second amended complaint is unnecessarily complicated and verbose. The text of the complaint rambles for more than 600 paragraphs and 240 pages, including a 50-plus page "overview" of the alleged wrongful conduct. The district court, through two rounds of difficult motions, had narrowed plaintiffs' claims. The court then ordered plaintiffs to submit a third amended complaint containing only those allegations relevant to what were, in the court's view, the remaining viable claims. This does not seem to us to constitute an abuse of discretion; indeed, it makes a tremendous amount of sense.
Westinghouse, 90 F.3d at 703.
The statute of limitations for the securities fraud claims alleged here is one year from the time the plaintiff discovers the facts constituting the violation, and, in any event, within three years after the violation takes place, whether discovered or not. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364, 115 L. Ed. 2d 321, 111 S. Ct. 2773 (1991). The allegedly fraudulent conduct at issue in this case occurred in 1990 and 1991, and thus would ordinarily be time-barred. Schwartz, however, argues that the pendency of the lead Westinghouse case, brought as a class action without a class ever being certified, tolled the statute of limitations under the doctrine set forth by the Supreme Court in American Pipe & Construction Co. v. Utah, 414 ...