George Hornberger, an individual v. MERRILL LYNCH PIERCE FENNER & SMITH, INC., Delaware Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE HORNBERGER, an individual,
Plaintiff-Appellant,
v.
MERRILL LYNCH PIERCE FENNER &
SMITH, INC., Delaware Corporation;
BANK OF AMERICA CORPORATION,
a Delaware Corporation; MERRILL
LYNCH & CO., INC., a Delaware
Corporation,
Defendants-Appellees.
No. 15-55249
D.C. No.
8:14-cv-01645-DOC-RNB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted January 13, 2017
Pasadena, California
Before: TROTT, McKEOWN, and WATFORD, Circuit Judges.
FILED
JAN 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

-- 1 of 3 --

After reading the briefs, listening to oral argument, and examining the
record, we conclude that Hornberger’s questionable claims involving “Japanese
Yen Notes,” which he alleges had a value in 2000 of $2 billion, are barred by the
applicable state statutes of limitation, the most generous of which is four years.
Our conclusion also covers his request for an accounting. The document from
Merrill Lynch faxed to Hornberger by William Meadows on March 18, 2002 put
Hornberger on actual notice that Merrill Lynch had not monetized the notes, could
not verify their validity, and wanted “no responsibility” for them. Moreover,
Hornberger knew that Meadows had asked Merrill Lynch to return the notes. We
agree with the district court that Hornberger’s failure to take any legal action on
this matter until November 19, 2013 was not excused by either the discovery rule,
equitable estoppel, or equitable tolling.
AFFIRMED.
2

-- 2 of 3 --

Hornberger v. Merrill Lynch, et al, No. 15-55249
TROTT, Circuit Judge, concurring:
During oral argument, it became clear that Hornberger’s claim for an
accounting is both moot and frivolous. First, Hornberger had no account with
Merrill Lynch. The account was opened by William Meadows, now deceased, and
Wellington International Trust. Second, Merrill Lynch showed a binder of
documents to Hornberger’s first round of lawyers and to Hornberger himself. The
documents included Meadows’s signed receipt for the notes which Meadows had
asked Merrill Lynch to return. In a document submitted under penalty of perjury,
Hornberger admits reviewing this signed receipt. The date of the receipt was 2002.
Hornberger’s uncorroborated self-serving claim that Meadows’s signature and
initials on the receipt were forgeries lacks any indicia of credibility. Third, his
current attorney’s representation during oral argument as an officer of the court
that he had “yet to be shown” any documents from Merrill Lynch about the status
of the accounts was directly contradicted by his further admission that Merrill
Lynch had shown him a signed copy of the 2002 faxed receipt “once we initiated
litigation.” Counsel for Hornberger concedes that he wants “an accounting as to
what happened to the notes.” This objective has already been achieved. Counsel’s
request amounts to asking us to send the district court on a wild goose chase.
FILED
JAN 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 3 of 3 --