William M. Rogers v. Joseph P. Nacchio

241 F. App'x 602
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 12, 2007
Docket06-13712
StatusUnpublished
Cited by30 cases

This text of 241 F. App'x 602 (William M. Rogers v. Joseph P. Nacchio) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
William M. Rogers v. Joseph P. Nacchio, 241 F. App'x 602 (11th Cir. 2007).

Opinion

PER CURIAM:

This is a securities fraud case brought by William M. Rogers and C. Mylett. Their second amended complaint (the “complaint”), consisting of 344 pages, contains 25 counts. The complaint includes claims under the federal RICO statute, 18 U.S.C. § 1964; the Securities Act of 1934 § 10(b), 15 U.S.C. § 78j(b); the Florida RICO statute, Fla. Stat. § 772.103; the Colorado RICO statute, Colo.Rev.Stat. § 18-17-104; Colorado and Florida securities laws; and claims that the defendants aided and abetted these statutory violations. The complaint also asserts claims based on common law fraud, fraudulent inducement, fraudulent concealment, and conspiracy.

The defendants moved to dismiss the complaint (with respect to the claims asserted against them) on a variety of grounds. On June 5, 2006, the district court ruled on their motions and disposed of this case with a final judgment. Rogers and Mylett now appeal, contending that the district court erred by (1) dismissing their federal securities claims involving stock in Qwest Communications International, Inc. (“Qwest”) as barred by the applicable statute of limitations or statute of repose, (2) determining that it did not have personal jurisdiction over many of the named defendants, (3) dismissing the remaining counts of the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted, and (4) dismissing the complaint with prejudice without allowing them an opportunity to amend. In addition, they challenge the district court’s decision ordering them to pay a $500 fine, as a sanction for violating Federal Rule of Civil Procedure 11, and awarding the defendants attorney’s fees.

I.

We start with appellants’ first argument for reversal — that the district court erred in dismissing their federal securities law claims involving their purchase of Quest stock as time-barred. A district court’s interpretation and application of the stat *605 ute of limitations is reviewed de novo. Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1278 (11th Cir.2005). 1 Under 28 U.S.C. § 1658(b), “a private right of action that involves a claim of fraud, deceit, manipulation, or contrivance in contravention of a regulatory requirement concerning securities laws ... may be brought not later than the earlier of— (1) 2 years after the discovery of the facts constituting the violation; or (2) 5 years after such violation.” 28 U.S.C. § 1658(b) (emphasis added). Unlike the two-year statute of limitations which begins to run after the cause of action accrues, the five-year period beginning at the time of the violation is a statute of repose meant to serve as a cutoff for a cause of action. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 2782, 115 L.Ed.2d 321 (1991) (construing the statute under the previous one- and three-year structure). As such, tolling principles do not apply to the five-year statute of repose. Tello, 410 F.3d at 1279 n. 5.

Because Rogers and Mylett did not file their original complaint until April 2005, more than five years after they bought Qwest stock, the district court correctly determined that the federal securities claims were barred by the five-year statute of repose.

II.

A district court’s dismissal for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) is also reviewed de novo. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir.1996). Determining whether the district court had personal jurisdiction involves two steps. Id. “First, we must determine whether the Florida long-arm statute provides a basis for personal jurisdiction. If so, then we must determine whether sufficient minimum contacts exist between the defendants and the forum state so as to satisfy traditional notions of fair play and substantial justice under the Due Process Clause of the Fourteenth Amendment.” Id. (quotation marks omitted). Under Florida law, the plaintiff bears the burden of proving personal jurisdiction. Id. at 627 (“When a defendant raises, through affidavits, documents or testimony, a meritorious challenge to personal jurisdiction, the burden shifts to the plaintiff to prove jurisdiction by affidavits, testimony or documents.”).

The Florida long-arm statute states, in pertinent part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(b) Committing a tortious act within this state.
(f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside *606 this state, if, at or about the time of the injury, either:
1. The defendant was engaged in solicitation or service activities within this state; or
2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.
(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

Fla. Stat. § 48.193. Generally, this section has been interpreted to include tortious acts committed outside of Florida that cause injury within Florida. Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1217 (11th Cir.1999).

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Bluebook (online)
241 F. App'x 602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-m-rogers-v-joseph-p-nacchio-ca11-2007.