GRAND LODGE OF PENNSYLVANIA v. Peters

560 F. Supp. 2d 1270, 2008 U.S. Dist. LEXIS 44907, 2008 WL 2370168

Opinion

ORDER

RICHARD A. LAZZARA, District Judge.

Before the Court are Defendants San-dler O’Neill & Partners, L.P. and Sterne Agee & Leach, Inc.’s Joint Motion to Dismiss Amended Consolidated Complaint (Dkt. 101), Coast Defendants’ Motion to Dismiss Second Amended Complaint (Dkt. 102), Lead Plaintiffs Omnibus Opposition (Dkt. 104), and Defendants’ Joint Reply. (Dkt. 107). After careful consideration of the allegations of the Amended Consolidated Complaint (Dkt. 93), and the applicable law, the Court concludes the motion should be denied.

Procedural Issues

When this Court granted the Underwriter Defendants’ 1 motion to dismiss based on Mr. Ratcliffs lack of standing, it did so without prejudice. See Stalley v. Orlando Reg’l Healthcare Sys., Inc., 524 F.Sd 1229, 1232 (11th Cir.2008) (relying on prior authority for premise that dismissal for lack of standing is tantamount to dismissal for lack of subject matter jurisdiction and deemed entered without prejudice). The order simply grants the motion to dismiss and permits Lead Plaintiffs twenty days within which to file an amended complaint “in accordance with this order.” 2 Although the body of the order specifically mentions that an opportunity to amend would be given as to the auditors, the order is silent as to the Underwriter and Coast Defendants with respect to the Section 11 claims. Having given leave to amend without any limiting language with respect to the Section 11 claims, the Court through its order did not prohibit the addition of a new plaintiff, nor did it require that Mr. Ratcliff seek leave of court to amend. 3 At the time of the last motion to dismiss, the Court determined that Mr. Ratcliff had no standing to bring the Section 11 claim on behalf of the putative class. The particular situation today in which the Defendants contest the addition of a new plaintiff by timely amendment to represent the putative class, however, was not before the Court.

Plaintiff Villere’s Standing

In the Amended Complaint, 4 Lead Plaintiffs add a new plaintiff, St. Denis J. Vil-lere & Company, LLC (Villere), which is an investment advisor. Villere purchased stock in the secondary public offering (SPO) of October 2005 predominantly for the benefit of its customers. Defendants contend that Villere lacks standing because, as an investment advisor, it has not shown that it suffered an “injury in fact.” See E.F. Hutton & Co. v. Hadley, 901 F.2d 979, 985-86 (11th Cir.1990) (dismissing suit and holding that bankruptcy trustee did not have standing to assert claims of non-party creditors). 5 The Section 11 claim remains the same as that brought in the prior complaint.

Defendants rely on Indemnified Cap. Invs., S.A. v. R.J. O’Brien & Assoc., Inc., 12 F.3d 1406 (7th Cir.1993), and In re Tyco Inti. Ltd., 236 F.R.D. 62 (D.N.H.2006), for the proposition that Villere did not allege direct injury, if any, it suffered from its purchase of stock for its customers. Defendants also contend that courts do not permit investment advisors to bring suit on behalf of their customers absent proof of the authority to bring suit on their behalf, see, e.g., Weinberg v. Atlas Air Worldwide Holdings, Inc., 216 F.R.D. 248, 255 (S.D.N.Y.2003), or absent proof of full authority to purchase and sell its customers’ securities and manage their accounts. See, e.g., In re Rentr-Way Sec. Litig., 218 F.R.D. 101, 107-09 (W.D.Pa.2003). Plaintiffs counter with Newman v. Eagle Bldg. Techs., 209 F.R.D. 499, 506 (S.D.Fla.2002), as precedent for an investment advisor bringing suit on behalf of its customers. 6 In Newman, the court found that the banks, which were proposed lead plaintiffs, had a sufficient interest in the litigation because they had purchased the securities on behalf of their customers.

In this case, Villere filed a sworn affidavit attesting that it has full and complete discretion and authority to manage its customers’ accounts and to purchase securities on their behalf. 7 Based on the authority following the reasoning in Rentt-Way, the Court finds that Villere has standing to bring this suit on behalf of its customers as a purchaser of the stock in the SPO.

Defendants further argue that this Court has not authorized Villere to prosecute a class action claim in view of the absence of lead plaintiff scrutiny as required by the Private Securities Litigation Reform Act (PSLRA). The Davidco court cited Hevesi v. Citigroup Inc., 366 F.3d 70, 81-83 (2d Cir.2003), In re Global Crossing, Ltd. Sec. Litig., 313 F.Supp.2d 189, 204-205 (S.D.N.Y.2003), and Gariety v. Grant Thornton, LLP, 368 F.3d 356, 370-71 (4th Cir.2004), to support the granting of leave to add a named plaintiff with standing to bring a Section 11 claim. These cases discuss situations in which the lead plaintiff may not possess standing to sue on all of the claims and, thus, other named plaintiffs may assist the lead plaintiffs even though their qualifications may not rise to the level of lead plaintiff. Generally, the PSLRA does not prohibit the addition of named plaintiffs to aid the lead plaintiffs. See Hevesi, 366 F.3d at 82-83; In re Initial Public Offering Sec. Litig., 214 F.R.D. 117, 122-23 (S.D.N.Y.2002) (granting motion to amend to permit named, as opposed to lead, plaintiff to bring certain claims where lead plaintiff did not have standing on all claims); In re Global Crossing, 313 F.Supp.2d at 204-205. Consequently, the addition of Villere as a named plaintiff is permissible.

Defendants also assert that Villere lacks standing based on the binding authority of Summit Office Park, Inc. v. U.S. Steel Corp., 639 F.2d 1278 (5th Cir.1981). 8 In Summit, which was not a securities case, a class of plaintiffs, as “indirect purchasers” of rebar materials, brought an antitrust action but lost their claim for relief when the Supreme Court issued a decision during the pendency of the class action lawsuit. One day before the announced ruling on summary judgment in the class action, Summit filed an amended complaint adding two new plaintiffs, as “direct purchasers” of rebar materials, who would ostensibly be able to proceed with the claim based on the Supreme Court’s intervening decision. The Summit court notes, however, that the new amended complaint “also changed the cause of action in an apparent attempt to conform to the principles” of the intervening opinion. More importantly, Summit, as sole class representative, admitted that it had no standing to bring any claim. The two new plaintiffs, however, could not represent the class as defined because they were “direct” purchasers and the class as defined consisted of “indirect” purchasers.

In ruling, the court noted the uniqueness of the particular facts of the case. Summit, 639 F.2d at 1282. The Summit court required that a new case be filed because the class needed to be redefined to meet the strictures of the intervening opinion, the new plaintiffs would necessarily have to represent that class based on the intervening opinion, and a new cause of action was being asserted to comply with the intervening opinion. Unlike the instant case, Summit involved an amendment not only to substitute the original plaintiff, but to create a new class with a new cause of action. There, at the moment of the intervening decision of the Supreme Court, the sole original plaintiff, Summit, lost its cause of action. No cause of action existed for any member of the existing putative class, and the cause of action could not be amended to state a cause of action for that putative class in view of the Supreme Court decision. On the other hand, in this case, the putative class could still obtain relief under the same legal theory asserted by Mr. Ratcliff. In short, the Court finds that Summit is not completely analogous to this case.

Relation Back

In the Eleventh Circuit, the standard for determining whether an amendment to add a plaintiff “relates back” 9 to the filing of the original complaint includes consideration of three elements: (1) whether the amended claim arose out of the same conduct, transaction, or occurrence as in the original pleading; (2) whether the amendment will unduly prejudice the defendant; and (3) whether the original complaint provided adequate notice of the nature of the new proposed class. See Fed.R.Civ.P. 15(c)(1)(B); 10 Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1131-33 (11th Cir.2004) (declining to specify exactly which test courts should apply, the Eleventh Circuit discussed the test under former Rule 15(c)(3) and the Ninth Circuit’s in In re Syntex Corp. Sec. Litig., 95 F.3d 922, 935 (9th Cir.1996)); Reasoner v. All Seasons Pool Serv., Inc., No. 6:06-cv-1819-Orl-19DAB, 2007 WL 4326808, at *3 n. 5 (M.D.Fla. Dec. 7, 2007); Hughes v. American Tripoli, Inc., No. 2:04-cv-485-FtM-29DNF, 2007 WL 2010786, at *2 (M.D.Fla. Aug. 8, 2007); Senterfitt v. SunTrust Mortgage, Inc., 385 F.Supp.2d 1377, 1380 (S.D.Ga.2005). In Cliff, the plaintiff amended the class action complaint to add consumer debtors nationwide, as opposed to the original class of only Florida consumers. There, the court held that the defendant did not receive sufficient notice of the significantly larger class. In so doing, however, the Eleventh Circuit emphasized that enlarging the class size alone does not suffice in every case to defeat relation back. Cliff, 363 F.3d at 1133 n. 16.

There is no question that the new named plaintiff, Villere, asserts the same Section 11 claim as did Mr. Ratcliff. Thus, the two remaining considerations are notice and prejudice. Defendants had notice of the Section 11 suit on August 24, 2007, when Mr. Ratcliff alleged the same Section 11 claim on behalf of the putative class of persons who purchased shares pursuant to or traceable to the SPO. 11 Given the adequate length of time the Defendants have been placed on notice and the absence of any evidence of prejudice, the Court finds that the claim relates back to the original filing of the Section 11 claim.

Tolling of Statute of Limitations

Defendants argue that the one-year statute of limitations on the Section 11 claim was not tolled, citing Griffin v. Singletary, 17 F.3d 356 (11th Cir.1994). Griffin is not controlling in this case, however. Griffin discussed the absence of tolling for successive class actions, “the non-piggyback rule for class actions.” Under the facts of Griffin, the district court denied class certification, and the cases relied on in Griffin support the conclusion that there is no tolling 12 for successive class actions by putative class members once class certification is denied. See Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988); Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987). Class certification has not been denied in this case. The non-piggyback rule for class actions exists to prevent putative class members from relitigating the denial of class certification. The Court finds that Villere’s addition as a new named plaintiff does not alter the already tolled statute of limitations on either the Section 11 or 15 claim.

In addition to the aforementioned grounds asserted for dismissal, the Court finds that the substantive allegations of the Section 11 and 15 claims are sufficient to withstand dismissal. It is therefore ORDERED AND ADJUDGED as follows:

(1) Defendants Sandler O’Neill & Partners, L.P. and Sterne Agee & Leach, Inc.’s Joint Motion to Dismiss Amended Consolidated Complaint (Dkt. 101) is DENIED.

(2) Coast Defendants’ Motion to Dismiss Second Amended Complaint (Dkt. 102) is DENIED.

(3) Defendants shall file their answers and defenses within twenty (20) day of this order.

(4) The parties shall confer, prepare, and submit to this Court a case management report within forty-five (45) days of this order, following which this Court will convene a preliminary pretrial conference.

1 . The Underwriter Defendants are Sandler O'Neill & Partners, L.P. and Sterne, Agee & Leach, Inc.

2 . See docket 92 at pp. 25-26.

3 . Another district court in the Middle District of Florida, after dismissing a Section 11 claim without prejudice, allowed the plaintiff to amend to refile the Section 11 claim by adding a new plaintiff. See Davidco Investors, LLC v. Anchor Glass Container Corp., No. 8:04-cv-2561-T-24EAJ at docket 127 at pp. 3-5 (M.D.Fla. May 15, 2006). Under circumstances in which the lead plaintiffs do not possess standing to sue on all of the claims, the addition of named plaintiffs to assist the lead plaintiffs permits proper representation of the class.

4 . See docket 93.

5 . In Hadley, the specific issue was whether the bankruptcy trustee, who represented the entity that sold securities to customers, had standing to assert claims on behalf of the entity's customers under bankruptcy law. Because the injury caused to the customers was not the sole fault of Hutton, but also the debtor entity, the bankruptcy trustee was deemed not to have standing.

6 . See also Sofran v. LaBranche & Co., 220 F.R.D. 398, 403 (S.D.N.Y.2004) (reasoning that city’s retirement system had standing to pursue action on behalf of its clients even though shares reported on certification did not reflect its beneficial ownership when shares were essentially held beneficially for clients).

7 . See docket 104 at Exh. A.

8 . Defendants also cite Turner v. First Wisconsin Mortgage Trust, 454 F.Supp. 899, 913 (D.Wis.1978), in support of their contention, which is cited in Summit. Turner does not reveal sufficient facts to adequately compare them to those of the instant case.

9 . When an amended complaint seeks to add a new party, rather than a new claim, "the relation back rule is more stringent.” Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1131 (11th Cir.2004).

10 . This rule was previously numbered 15(c)(2).

11 . See docket 35.

12 . See American Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974).