Return on Equity Group, Inc. v. MPM Technologies, Inc.

66 F. App'x 400

• Court: Court of Appeals for the Third Circuit
• Decided: May 20, 2003
• Docket: 02-3374
• Status: Unpublished

Opinion

OPINION OF THE COURT

FUENTES, Circuit Judge.

Plaintiffs, Return on Equity Group, Inc., two of its related entities, and two of its executives (collectively, “ROE”) commenced the present action against MPM Technologies, Inc. and several of its officers (collectively, “MPM”) in connection with the alleged termination of certain consulting agreements between the parties. ROE asserted two claims of securities fraud pursuant to section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), and section 20(a), 15 U.S.C. § 78t. ROE’s Complaint also included three claims brought pursuant to New Jersey state law for breach of contract, iraud and misrepresentation under the New Jersey Consumer Fraud Act, and trade libel. MPM moved to dismiss the Complaint in its entirety, which the District Court granted.

As to the state law claims, the District Court held that the presence of a valid and enforceable forum selection clause designating the Superior Court of New Jersey, Morris County, as the situs of all litigation arising out of the consulting agreements compelled the dismissal of those claims. ROE does not contest the District Court’s decision in this regard, and its state law claims are not before us.

With regard to the securities fraud claims, the Court noted exclusive jurisdiction pursuant to 15 U.S.C. § 78aa. Nevertheless, the District Court held that (1) ROE failed to allege an essential element of securities fraud—the purchase, sale, or transfer of MPM stock; and (2) even if it could prove a transfer of MPM stock, ROE failed to allege fraud with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure. We agree that ROE failed to allege any cognizable transfer of MPM stock and, therefore, will affirm the judgment of the District Court. 1 In addition, we will deny ROE’s request, made for the first time on appeal, to amend its Complaint.

I.

ROE purports to be a management consulting firm, specializing in mergers and acquisitions. 2 It also claims to be a specialist in reviving companies in poor financial condition. MPM is a holding company with subsidiaries in the business of designing, building, installing, and servicing industrial air pollution systems. MPM is a public corporation whose stock traded on the Nasdaq National Market during the time period relevant to this dispute.

The parties entered into an initial agreement in September 2000 (the “September Agreement”) in which ROE agreed to provide consulting services to MPM. This agreement entailed the “lend-lease” of an ROE executive to MPM. Although the agreement also set the price for ROE’s services, MPM could elect to pay ROE in cash or in MPM stock. To this day, there is no clear statement from ROE as to whether they were paid in cash or in stock. According to ROE, one of its notable achievements in the consulting arrangement was the commencement of negotiations for MPM to acquire ST2EP, a company in a line of business complementary to MPM.

In November 2000, ROE contends that the parties sought to revise the September Agreement to extend and solidify the relationship between ROE and MPM. These efforts resulted in additional contracts which contemplated an ROE executive working full-time for MPM for a five-year term.

According to ROE, the relationship between the parties deteriorated soon thereafter. Although the Complaint is not a model of clarity, particularly with respect to the allegations of fraud, the fraudulent conduct apparently relates to a dispute between the parties as to MPM’s potential disclosure obligations to its shareholders in the event of its acquisition of ST2EP. ROE’s provision of consulting services to MPM ended soon thereafter.

II.

Our review of a District Court’s grant of a motion to dismiss is plenary. See In re Rockefeller Center Properties, Inc. Securities Litigation, 311 F.3d 198, 215 (3d Cir. 2002). We are obliged to apply the same standards applied by the District Court. See id. Therefore, for purposes of this appeal, we accept the well-pleaded allegations in ROE’s Complaint as true.

III.

We agree with the District Court that ROE failed to allege an essential element of securities fraud pursuant to section 10(b). 3 We have often stated that one of the threshold elements of a section 10(b) claim is a well-pleaded allegation of a material misrepresentation or omission in connection with the purchase or sale of securities. See Weiner v. Quaker Oats Co., 129 F.3d 310, 315 (3d Cir.1997).

ROE’s allegations relating to purchase, sale, or transfer are, at best, perplexing. The only detailed assertion of stock transfer is stated entirely as a theoretical possibility: “[u]nder the terms of the September Agreement, MPM would have the right to make payment to ROE of its acquisition fees in common stock at the current market price it trades for at the time of closing or cash.” Compl. at ¶27 (emphasis added). ROE’s allegation establishes no more than that MPM could choose its method of payment and that payment in stock was one of the two choices. The District Court correctly observed that; without more, the mere statement of the theoretical possibility of a stock transfer was not sufficient to allege a purchase, sale, or transfer of securities. 4

IV.

Finally, ROE asks us to remand the case in order to permit it to amend the Complaint, even though it never filed a proper motion to amend in the District Court. We will deny this eleventh-hour request to cure ROE’s defective pleading.

It is well-settled that when judgment has been entered, the presumption favoring liberal amendments is reversed. See Werner v. Werner, 267 F.3d 288, 296 (3d Cir.2001). Under these circumstances, leave to amend becomes the “long-odd exception rather than the rule.” Id. (quoting The Dartmouth Review v. Dartmouth College, 889 F.2d 13, 22 (1st Cir.1989)). At oral argument, we attempted to give ROE a full and fair opportunity to set forth specific allegations of purchase, sale, or transfer of MPM stock. Once again, ROE failed to state how an amendment would cure the deficiencies in its Complaint. The mere repetition of these unspecified allegations in ROE’s briefs, and again at oral argument, convinces us that leave to amend would not serve the interests of justice.

For the reasons set forth above, we will affirm the judgment of the District Court, and we will deny leave to amend the Complaint.

1 . Because we agree with the first of the two alternative rationales advanced by the District Court, we need not address the second.

2 . We write solely for the benefit of the parties and, therefore, review the factual background only to the extent necessary to inform our decision today. The District Court performed a thorough review of the factual background in its decision on the underlying motion to dismiss. See Return on Equity Group, Inc. v. MPM Technologies, Inc., No. 02-CV-425, slip op. at 3-7 (D.N.J. July 25, 2002).

3 . As we have stated before, controlling person liability pursuant section 20(a) is a derivative claim premised on an independent violation of the federal securities laws. See In re Rockefeller, 311 F.3d at 211. Therefore, our analysis of ROE’s section 10(b) claim is equally applicable to its claim pursuant to section 20(a).

4 . Nor is the inherent indefiniteness of ¶ 27 cured by the equally ambiguous allegation in ¶ 6 that "Plaintiffs are either shareholders or owed shares of MPM Technologies common stock, and were damaged thereby.” Section 10(b) requires a well-pleaded allegation of purchase, sale, or transfer of securities.