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In re Interbank Funding Corp.

May 26, 2006


The opinion of the court was delivered by: John D. Bates United States District Judge


This action is before the Court on a limited remand from the United States Court of Appeals for the District of Columbia Circuit with instructions to "enter a new order" that either (1) dismisses the claims against defendants CIBC World Markets Corp. ("CIBC") and Radin Glass & Co. ("Radin") without prejudice or (2) explains why dismissal of those claims should be with prejudice. The remand was ordered in light of the requirements for dismissal with prejudice enunciated in Firestone v. Firestone, 76 F.3d 1205 (D.C. Cir. 1996), and the D.C. Circuit's holding in this case that the Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. § 78u-4 et seq., "does not mandate dismissal with prejudice" when a plaintiff has failed to meet the statute's pleading requirements. Belizan v. Hershon, 434 F.3d 579, 584 (D.C. Cir. 2006) (emphasis supplied).

On August 9, 2004, this Court dismissed some of the then-uncertified class-action claims of plaintiffs Monica Belizan and William Prather arising out of their investments in the Interbank Funding Corporation ("IBF"). Between 1997 and 2002, IBF and its subsidiaries issued debt securities in several investment funds totaling $195 million. Plaintiffs claimed that the funds amounted to a Ponzi scheme: proceeds from later fund offerings allegedly were used to make interest payments to earlier investors. CIBC, a brokerage firm that sold some IBF securities, and Radin, IBF's auditor, were named as defendants along with Simon Hershon, IBF's chief executive. Plaintiffs alleged that CIBC and Radin violated section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. § 78j(b), and Exchange Act Rule 10b-5, 17 C.F.R. § 240.10b-5, by willingly participating in the promulgation of misleading disclosures regarding the funds. Plaintiffs also contended that Radin's conduct violated section 11 of the Securities Act of 1933 (the "Securities Act"), 15 U.S.C. § 77k. A purported subclass of the plaintiffs asserted that CIBC violated sections 12(a)(1) and 12(a)(2) of the Securities Act, 15 U.S.C. § § 771(a)(1) & (2).

This Court concluded that "none of these claims [could] proceed in the face of the demanding pleading standards applicable in securities cases," In re Interbank Funding Corp. Sec. Litig., 329 F. Supp. 2d 84, 86 (D.D.C. 2004) (hereinafter "Interbank"), and granted the motions to dismiss of CIBC and Radin, with prejudice, id. at 96.*fn1 The Court also found that defendants had not moved for leave to amend the complaint because "arguments in the alternative [made] during hearings on [motions to dismiss] ... do not amount to formal motions for leave to amend." Id. Plaintiffs promptly sought reconsideration of that order, asserting that they had in fact made a proper motion for leave to amend and that it was clear error for the Court to have dismissed the claims against CIBC and Radin with prejudice. The Court denied that motion on September 13, 2004, and plaintiffs appealed the orders dismissing their claims and denying their motion for reconsideration.

On appeal, plaintiffs did not challenge dismissal of their case for failure properly to plead securities-fraud claims; instead, they merely rehearsed the arguments that they had made in support of the motion for reconsideration. The court of appeals held that this Court "correctly determined [that plaintiffs] never moved for leave" to amend their complaint under Rule 15(a) of the Federal Rules of Civil Procedure or Local Civil Rule 15.1. Belizan, 434 F.3d at 583. Absent such a motion, district courts have no obligation to invite amendments by plaintiffs who have failed to properly plead their claims. See Confederate Mem'l Ass'n v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993) ("As appellants did not properly request leave to amend the ... claim, it could hardly be an abuse of discretion for the District Court not to have afforded them such leave sua sponte."); see also Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) ("Denial of leave to amend and dismissal with prejudice are two separate concepts."). Nevertheless, the court of appeals vacated this Court's order of dismissal -- not because plaintiffs should have been granted leave to amend (there was no motion) and not because the pleadings were adequate (they were not),*fn2 but because the court of appeals was "uncertain why the district court dismissed with prejudice" and whether the rationale for doing so was based upon an erroneous belief that dismissal with prejudice (that is, without leave to re-file) was required by the PSLRA. Belizan, 434 F.3d at 583.*fn3 The court of appeals said:

The standard for dismissing a complaint with prejudice is high: "dismissal with prejudice is warranted only when a trial court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Firestone, 76 F.3d at 1209. Therefore, a complaint that omits certain essential facts and thus fails to state a claim warrants dismissal pursuant to Rule 12(b)(6) but not dismissal with prejudice.

Id. (internal parenthetical omitted). It further concluded that the provision of the PSLRA that authorizes dismissal of claims that fail to meet the statute's heightened pleading requirements, 15 U.S.C. § 78u-4(b)(3)(A), "does nothing to change the ordinary consequences of a 'failure to meet pleading requirements.'" Id. at 583-84.

The "ordinary consequences" of an order that involuntarily dismisses a claim -- including those that are based on a plaintiff's failure to meet pleading requirements -- are dictated by Rule 41(b) of the Federal Rules of Civil Procedure, which provides that, "[u]nless the court in its order for dismissal otherwise specifies, ... any dismissal ... other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits." See Fed. R. Civ. P. 41(b). Because an "'adjudication on the merits' is the opposite of a 'dismissal without prejudice,'" Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001), any order of involuntary dismissal that does not fall within one of the Rule 41(b) exceptions is presumptively a dismissal with prejudice. The Supreme Court, however, has interpreted the Rule 41(b) exceptions expansively, such that they encompass any dismissal that is "based on a plaintiff's failure to comply with a precondition requisite to the Court's going forward to determine the merits of the substantive claim." Costello v. United States, 365 U.S. 265, 285 (1961). Dismissals on that basis (which may include some dismissals for "failure to meet pleading requirements") are presumptively not "on the merits" and thus are without prejudice.*fn4

The court of appeals did not address Rule 41(b) in its opinion in this case, perhaps because it considers the Firestone analysis to be mandatory regardless of the default consequence of dismissal as provided in the Federal Rules (at least in situations where a plaintiff seeks to revive a dismissed claim). Given the precision of the D.C. Circuit's remand, this Court need not determine whether the "new order" dismissing the claims against CIBC and Radin for failure to satisfy the pleading requirements of the PSLRA would presumptively be "on the merits" (and thus with prejudice) under Rule 41(b) if the Court did not otherwise specify, because the court of appeals has instructed this Court to specify the operative effect of the order.*fn5

The specific questions that the court of appeals has directed this Court to answer are whether the new order, issued herewith, dismissing the claims against CIBC and Radin, should be with prejudice and, if so, why. Consistent with the earlier rulings on the motions to dismiss and plaintiffs' motion for reconsideration, the Court concludes that the claims are dismissed with prejudice because, based on the record before the Court at the time of dismissal, there was no indication that plaintiffs were capable of making additional allegations, consistent with their prior pleadings, that would cure the deficiencies in the claims against CIBC and Radin.

This conclusion is confirmed by the draft complaint that plaintiffs attached as an exhibit to their motion for reconsideration and that they indicated they would have filed had the Court reconsidered the dismissal with prejudice. In making that motion, plaintiffs never seriously contended that they would be able to cure the deficiencies identified by the Court. Indeed, the memorandum accompanying plaintiffs' motion for reconsideration did not even attempt to explain how the draft complaint would do so. Nor did the memorandum contend that plaintiffs could not reasonably have proposed the revisions prior to the Court's ruling on the motions to dismiss. Instead, before this Court plaintiffs continued to insist that their earlier effort was satisfactory (although they later abandoned that argument on appeal). See Pls.' Mem. in Supp. of Mot. for Reconsideration at 3-5 (referring repeatedly to the "purported" deficiencies or inadequacies of the dismissed claims against CIBC and Radin). And, as the Court explained when it denied the motion for reconsideration, plaintiffs' post-dismissal effort suffered from many of the same failings that proved fatal to the earlier statement of their claims.

For example, plaintiffs continued to fall well short of the PSLRA's requirement that, for any claim brought under section 10(b) of the Exchange Act, the complaint must "specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and ... all facts on which [any allegation made on 'information and belief'] is formed." See 15 U.S.C. § 78u-4(b)(1)(B).*fn6 In the entire forty-seven page draft amended complaint, there are only two specific statements that are attributed to either CIBC or Radin. The draft complaint alleges that CIBC informed potential and actual purchasers of IBF securities, including Plaintiff Prather, that prior to commencing with the sale of IBF securities, [it] had conducted extensive investigations into the business, operations, business strategy, prospects, financial condition, and accounting and management control systems of IBF.

Pls.' Mot. for Reconsideration, Ex. A. at ¶ 112. It further alleges that Radin stated that

We conduct our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform our audit to obtain reasonable assurance about whether the financial statements are free of material misstatements. ... In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of IBF Special Purpose Corporation VII as of December 31, 1999 and the results of its operations and its cash flows ...

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