Wu v. Stomber

292 F.R.D. 69, 2013 WL 2407195, 2013 U.S. Dist. LEXIS 78043
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 4, 2013
DocketCivil Action No. 11-2287 (ABJ)
StatusPublished
Cited by2 cases

This text of 292 F.R.D. 69 (Wu v. Stomber) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wu v. Stomber, 292 F.R.D. 69, 2013 WL 2407195, 2013 U.S. Dist. LEXIS 78043 (D.C. Cir. 2013).

Opinion

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

This matter is before the Court on plaintiffs’ motion for leave to file an amended consolidated complaint and to amend the judgment pursuant to Federal Rules of Civil Procedure 15(a)(2) and 59(e). Plaintiffs have also appealed the judgment, which was entered on August 13, 2012. Since plaintiffs have not satisfied the requirements of Rule 59(e), and the proposed amendments do not cure the flaws in the complaint that was the subject of the Court’s prior Memorandum Opinion, the motion will be denied.

BACKGROUND

The facts giving rise to this lawsuit are set out in detail in the Court’s Memorandum Opinion of August 2012. Mem. Op. [Dkt. # 74] at 1-18. The Carlyle Capital Corporation (“CCC”) was an off-shore investment for sophisticated investors. CCC Offering Memorandum (“Off. Mem.”) [Dkt. # 52-3] at cover, 13. Its primary business consisted of buying residential mortgage-backed securities using “a very high degree of leverage.” Id. at 12-13. CCC securities were initially sold to investors through private placements in 2006, and then they were sold to a select group of buyers in a global offering of shares in July 2007 (the “Offering”).1 Original Consolidated Am. Compl. [Dkt. # 42] ¶¶ 30, 41.2 In preparation for the Offering, CCC issued an Offering Memorandum on June 19, 2007, and a Supplemental Offering Memorandum (“Supplement”) on June 29, 2007 (together “Offering documents”). [Dkt. #s 52-3 and 52-6]. In March of 2008, CCC entered into liquidation as conditions in the real estate market and the global economy deteriorated. Compl. ¶¶ 61, 142; see Mem. Op. at 1-18.

Plaintiffs are CCC investors who filed suit against CCC, its management firm, two affiliates of the management firm, and CCC’s directors and officers. Compl. ¶¶ 4-22. They brought the action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) on behalf of two proposed classes: (1) “all persons who purchased or otherwise acquired Class B Shares or Restricted Depository Shares (“RDSs”) of CCC in its Offering and were damaged thereby”; and (2) “all persons who purchased or otherwise acquired Class B Shares of CCC in market purchases during the period from July 4, 2007 through March 17, 2008 ... and were damaged thereby____” Id. ¶ 30. The gravamen of plaintiffs’ claim was that the June 19, 2007 Offering Memorandum was materially false and misleading because while it disclosed the risk that liquidity issues that would threaten the company could occur, it omitted information that would have alerted investors to the fact that those events had already begun to occur. AM Tr. at 20:5-21:3. Plaintiffs also contended that after the Offering, defendants continued to conceal the worsening financial condition of the company until CCC collapsed in March of 2008. See, e.g., Compl. ¶¶ 127-28.

A. Complaints: Initial Filings, Amendments, and Consolidation

Plaintiffs initially filed four related cases:

• Phelps v. Stomber, 11-cv-1142. Plaintiffs filed this action on June 21, 2011, alleging violations of federal securities laws against CCC’s management firm, two affiliates of the management firm, and CCC’s directors and officers;
• Phelps v. Carlyle Capital Corp., 11-cv-1143. Plaintiffs filed a second action on June 21, 2011, alleging the same violations of federal securities law as in Phelps v. Stomber against CCC;
[72]*72• Glaubach v. Carlyle Capital Corp., 11-cv-1523. Plaintiff Jonathan Glaubach filed this action on August 24, 2011, asserting one claim under the laws of the United Kingdom against CCC, its management firm, two affiliates of the management firm, and CCC’s directors and officers; and
• Wu v. Stomber, 11-cv-2287. Plaintiff Wu and four other plaintiffs filed an action in New York state court, asserting claims of common law fraud, negligent misrepresentation, and violations of , Dutch statutory laws against CCC, its management firm, two affiliates of the management firm, and CCC’s directors and officers. The case was removed to federal court and subsequently transferred to the D.C. District Court on December 14, 2011.

On October 7, 2011, the Court granted plaintiffs’ motion to consolidate both of the Phelps actions, 11-ev-1142 and 11-cv-1143, and the Glaubach action, ll-ev-1523. Order [Dkt. # 22]. At the time of the consolidation, the Wu action had not yet been transferred to this Court, so it was not consolidated with the others. After the consolidation, plaintiffs filed amended complaints with the Court’s permission. Glaubach Am. Compl. [Dkt. # 32]; McLister Group (the plaintiffs in Phelps) Am. Compl. [Dkt. #27]. On November 16, 2011, after considering the competing motions for appointment as lead plaintiff, filed by the McLister Group [Dkt. # 3] and plaintiff Glaubach [Dkt. #4], the Court found that the McLister Group best satisfied the requirements and purpose of the lead plaintiff procedure in the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4. Mem. Op. and Order [Dkt. # 37] at 1. It therefore granted the McLister Group’s motion and denied Glaubach’s motion. Id. Glaubach subsequently filed a motion for reconsideration [Dkt. #40], which was denied. [Dkt. # 64].

After the appointment of the lead plaintiff, on December 5, 2011, plaintiffs filed a consolidated amended complaint alleging eleven counts including claims of securities fraud under sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78t(a), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5. Compl. ¶¶ 156-74, 192-208. The complaint also included common law fraud and negligent misrepresentation allegations, as well as claims under the laws of the United Kingdom and the Netherlands. Id. ¶¶ 175-91, 209-27.

B. Motion to Dismiss

On January 17, 2012, defendants moved to dismiss the consolidated complaint, pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) and the PSLRA, for failure to state a claim upon which relief can be granted. Defs.’ Mots, to Dismiss [Dkt. # s 51 and 52]; Defs.’ Replies [Dkt. #s 62 and 63].3 Plaintiffs opposed the motions. Pis.’ Mem. of Points and Authorities in Opp. to Mots, to Dismiss (“Pis.’ Opp. to Defs.’ Mots, to Dismiss”) [Dkt. #56]. On March 13, 2012, plaintiffs also moved to strike certain exhibits submitted in support of defendants’ motion to dismiss, as well as the factual assertions based on those exhibits. Pis.’ Mem. in Support of Mot. to Strike [Dkt. # 58-1]; Pis.’ Reply in Support of Mot. to Strike [Dkt. # 61]. Defendants opposed the motion. [Dkt. # s 59 and 60].

On May 23, 2012, the Court held a hearing on the motions to dismiss.4

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Bluebook (online)
292 F.R.D. 69, 2013 WL 2407195, 2013 U.S. Dist. LEXIS 78043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wu-v-stomber-cadc-2013.