« up840 F.2d 236
56 USLW 2512, Fed. Sec. L. Rep. P 93,642
RIVANNA TRAWLERS UNLIMITED, a Virginia general partnership;
Bruce H. Cabell; Waldemar G. Dahl; Joseph W. May; Charles
W. Miller; John R. Morris, Jr.; Mary M. Riviere; Colin
Rosse; Eleanor K. Spaar; Phil Speasmaker; Thomas L.
Schildwachter; Wesley A. Volk; Joan Volk; Benjamin H.
Word, Jr.; John K. Youel, Jr.; Donald T. Zimmerman,
Plaintiffs-Appellants.
and
Charles R. Borchardt; David F. Cooke; John R. Morris, III;
GMS Partnership; Joe H. Gieck; Frank C. McCue,
III, Plaintiffs,
v.
THOMPSON TRAWLERS, INC.; T-Craft Boat Company; Thompson
Management, Inc.; Beeline Seafoods, Inc.; Worrell
Newspapers, Inc.; Vessel Sales Corporation; Thomas E.
Worrell, Jr.; Walter B. Salley; Walter B. Salley, Jr.;
Salley, Weissinger & Co.; Joseph C. Palumbo, Defendants-Appellees.
No. 87-2516.
United States Court of Appeals,
Fourth Circuit.
Argued Jan. 7, 1988.
Decided Feb. 22, 1988.
Edward B. Lowry (Brian J. Donato; Robert W. Jackson; Michie, Hamlett, Donato & Lowry, Charlottesville, Va., on brief), for plaintiffs-appellants.
Stanley Efrom Preiser (Preiser Law Offices, Charleston, W. Va., on brief); Charles F. Midkiff (Midkiff & Associates, P.C.; Richmond, Va., Crady Swisher, III; Edward R. Slaughter, Jr.; Slaughter & Redinger; John W. Zunka; Taylor & Zunka, Charlottesville, Va., on brief), for defendants-appellees.
Before POWELL, Associate Justice (Retired); United States Supreme Court, sitting by designation; ERVIN, Circuit Judge, and BUTZNER, Senior Circuit Judge.
POWELL, Associate Justice:
1The dispositive issue presented in this case is whether the district court, 650 F.Supp. 1378 correctly concluded that appellants' general partnership interests in Rivanna Trawlers Unlimited are not securities within the meaning of the federal securities laws. We hold that these interests are not securities, and affirm.
2The appellate record indicates that the Virginia general partnership, Rivanna Trawlers Unlimited ("RTU"), was formed in August 1982 when twenty-three parties executed an agreement for the purpose of forming a general partnership, "which will acquire, own, lease and operate multi-purpose fishing vessels and otherwise engage in the commercial fishing business...." (App. at 1535). At some point, not disclosed by the record, Joseph W. May, M.D. also joined the partnership. On August 30, 1982 RTU purchased four fishing boats and entered into several agreements for their management and maintenance with Thompson Management, Inc. By the spring of 1983 the partners were expressing concern over the partnership's operations and they were considering management alternatives. Operation of the fishing boats had not been meeting the partners' financial expectations. The partners subsequently replaced RTU's external managers twice and removed RTU's original managing partner Walter B. Salley, Sr., who was a general partner of GMS, and replaced him with a managing partnership committee.
3In August 1984 RTU and a number of its partners filed a complaint against Thompson Trawlers, Inc., Thompson Management, Inc. and various other companies and individuals, including Walter B. Salley, Sr. and Walter B. Salley, Jr., in the United States District Court for the Western District of Virginia. These plaintiffs alleged that their interests in the general partnership were "investment contracts" as defined in the federal securities laws, and that appellees had violated these laws. Appellants also alleged various violations of Virginia state law. An amended complaint was filed in November 1984 and a second amended complaint was filed in August 1985. Jurisdiction was asserted pursuant to Sec. 22 of the Securities Act of 1933, Sec. 27 of the Securities Act of 1934, and Rule 10b-5. There was no diversity of citizenship, and therefore pendent jurisdiction was asserted as a basis for the court's jurisdiction over the Virginia state law claims. In response to the second amended complaint, appellees filed motions to dismiss on the ground, among others, that the plaintiffs had failed to state a cause of action under the federal securities laws. Appellees argued that the plaintiffs' general partnership interests were not securities. Appellees also alleged that a "Mutual Release Agreement," signed by all the plaintiffs in October 1983, released the appellees from all claims asserted in the complaints.
4The district court treated the motions to dismiss as motions for summary judgment. It found that the plaintiffs' general partnership interests were not securities and therefore it dismissed their federal claims.Noting that its jurisdiction was premised on the federal securities law claims, the district court declined to consider the pendent claims. All but two of the plaintiffs appealed.
5* The language of the district court, in dismissing the appellants' complaint, was somewhat ambiguous. Therefore we consider first the legal basis for the action taken by the district court. The Supreme Court has held that when the contested basis for jurisdiction is also an element of the plaintiff's federal claim, the claim should not be dismissed for lack of subject matter jurisdiction. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). When the claim is neither immaterial nor insubstantial, the proper course of action is for the district court to accept jurisdiction and address the objection as an attack on the merits. Id. Whether a particular interest is a "security" is both a question of subject matter jurisdiction and an element of appellants' asserted claims under the federal securities laws. See Futura Development Corp. v. Centex Corp., 761 F.2d 33, 38 (1st Cir.), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 121 (1985); AVC Nederland B.V. v. Atrium Investment Partnership, 740 F.2d 148, 152-53 (2d Cir.1984); Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). Moreover, the federal claims asserted by appellants are neither immaterial nor insubstantial. Despite its technically incorrect statement that "the case must be dismissed for want of jurisdiction," the court considered the security issue as though it were the basis of a motion to dismiss for failure to state a claim that had been converted into a motion for summary judgment. Therefore, we hold that the district court properly accepted jurisdiction over these claims and considered them on the merits.
II
6* In a motion for summary judgment, the moving party is entitled to summary judgment if, viewing the evidence in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. Id. 106 S.Ct. at 2514. Appellants contend that issues of material fact exist as to whether their general partnership interests fall within the scope of the term "investment contract" as used in section 2(1) of the 1933 Securities Act, 15 U.S.C. Sec. 77b(1), and in section 3(a)(10) of the 1934 Securities Exchange Act, 15 U.S.C. Sec. 78c(a)(10).
B
7We address first appellants' claim that their interests in the RTU partnership were investment contracts, and therefore were securities within the meaning of the federal securities laws. The Supreme Court has defined an investment contract as "a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party...." Securities & Exchange Commission v. W.J. Howey Co., 328 U.S. 293, 298-99, 66 S.Ct. 1100, 1102-03, 90 L.Ed. 1244 (1946). The critical issue on this appeal is whether appellants' general partnership interests in RTU meet the third prong of the Howey test--that is, the expectation of profits derived solely from the efforts of others. General partnerships ordinarily are not considered investment contracts because they grant partners--the investors--control over significant decisions of the enterprise. Deutsch Energy Co. v. Mazur, 813 F.2d 1567, 1570 (9th Cir.1987); Goodwin v. Elkins & Co., 730 F.2d 99, 102-03 (3d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 61 (1984); Odom v. Slavik, 703 F.2d 212, 215 (6th Cir.1983); Gordon v. Terry, 684 F.2d 736, 741 (11th Cir.1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983); Williamson v. Tucker, 645 F.2d 404, 422 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). In Williamson, a leading case, the Fifth Circuit identified a narrow exception to the strong presumption that a general partnership is not a security. The court stated that:
8... a partnership can be an investment contract only when the partners are so dependent on a particular manager that they cannot replace him or otherwise exercise ultimate control.
9Id. at 424 (emphasis added). Only when this degree of dependence by the partners exists is there an investment contract. Id. at 423. Moreover, the court emphasized that "[t]he delegation of rights and duties--standing alone--does not give rise to the sort of dependence on others which underlies the third prong of the Howey test." Id. In other words, the mere choice by a partner to remain passive is not sufficient to create a security interest. The critical inquiry is, "whether the powers possessed by the [general partners] in the [partnership agreement] were so significant that, regardless of the degree to which such powers were exercised, the investments could not have been premised on a reasonable expectation of profits to be derived from the management efforts of others." Id. at 419.
10We agree with the Fifth Circuit, as well as the other circuits that appear to have embraced the Williamson reasoning, that only under certain limited circumstances can an investor's general partnership interest be characterized as an investment contract. A court must examine the partnership agreement and circumstances of a particular partnership to determine the reality of the contractual rights of the general partners. When, however, a partnership agreement allocates powers to the general partners that are specific and unambiguous, and when those powers are sufficient to allow the general partners to exercise ultimate control, as a majority, over the partnership and its business, then the presumption that the general partnership is not a security can only be rebutted by evidence that it is not possible for the partners to exercise those powers. As the district court stated, "[e]ven when general partners do not individually have decisive control over major decisions, they do have the sort of influence which generally provides them with access to important information and protection against a dependence on others." (App. at 318). In a case of this kind, it also is important to bear in mind that Congress, in enacting the securities laws, did not intend to provide a federal remedy for all common law fraud. Marine Bank v. Weaver, 455 U.S. 551, 556, 102 S.Ct. 1220, 1223, 71 L.Ed.2d 409 (1982).
C
11The RTU Partnership Agreement confers broad authority on the partners to manage and control the business. It provides that the partnership can be dissolved by a concurrence of 60% in interest of the partners. (App. at 1536). It also states that, "[c]oncurrence of sixty percent (60%) in interest of the partners should be required with respect to policy and management decisions on [sic] the partnership business...." (App. at 1538). Policy and management decisions include: (i) the power to sell and convey, lease, mortgage, or encumber partnership assets; (ii) the power to borrow or lend sums on behalf of the partnership when in excess of $5000; (iii) the power to hire agents to manage or operate the business of the partnership; (iv) and the power to appoint a successor to the managing partner named in the agreement. Id. Moreover, at all times, each partner has reasonable access to the partnership's books of account and has the right to demand an audit of the partnership. (App. at 1540). Unanimous consent of the partners is required to transfer legal ownership of partnership interests, id., and additional partners can be added only with the unanimous consent of the partners. (App. at 1543). Finally, unanimous consent of the partnership also is required to distribute profits other than in proportion to the partners' respective interests. (App. at 1539).
12As the district court found, the express powers granted to the partners are sufficient, on their face, to give them the authority to manage their investments. Normally, such authority renders unnecessary the protection of the federal securities laws. The Eleventh Circuit has stated that, "[a]n investor who has the ability to control the profitability of his investment, either by his own efforts or by majority vote in group ventures, is not dependent upon the managerial skills of others." Gordon v. Terry, 684 F.2d 736, 741 (11th Cir.1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983). In this case, the partners not only had the authority under the agreement to manage the business, they exercised this authority and demonstrated that they were not dependent on the irreplaceable skills of others. Members of the partnership negotiated with external management groups, inspected the boats on behalf of the partnership, and reviewed partnership insurance material and financial information. Significantly, on two separate occasions the external managers were replaced. Moreover, as previously mentioned, by vote of the partners, one of the promoters, Walter Salley, Sr., was removed as managing partner of RTU and replaced with a management committee of partners. (App. at 1570). Partners also participated in settlement discussions.
13The real gravamen of appellants' complaint lies in common law fraud. As previously mentioned, the securities laws were not intended to be a substitute for state fraud actions. We affirm the district court's finding that appellants' partnership interests are not securities within the meaning of the Securities Act of 1933 or the Securities and Exchange Act of 1934.III
14The final issue we address is whether the district court intended to exercise pendent jurisdiction over the state law claims and dismissed them on their merits. At first glance, because of its alternative "finding" that, "the release executed by the parties is dispositive of all the substantive claims raised by the parties," (App. at 327) the district court's intention is not clear. Appellants assert that, "[h]aving determined that it lacked subject matter jurisdiction over the federal claims and having declined to exercise pendent jurisdiction over the state law claims, the District Court erred, thereafter, in deciding the validity and enforceability of the Release." Brief of Appellants at 26. As previously discussed, it would have been improper for the district court to dismiss the federal securities claims on the basis of lack of subject matter jurisdiction. The court had jurisdiction to decide, as it did, the federal securities law claims against the appellants. The consequence of its jurisdiction over these claims is that it then had to exercise its discretion to decide whether to address the pendent state law claims. The Supreme Court has stated, however, that "[c]ertainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). See also Coastal Neuro-Psychiatric Associates, P.A. v. Onslow Memorial Hospital, Inc., 795 F.2d 340, 342 (4th Cir.1986) (holding that when district court granted summary judgment on the federal claim, it correctly dismissed the pendent state law claim). This is not a case where the state claims are so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong. We interpret the district court's concluding statement that "it is unnecessary to consider the pendent claims" (App. at 327) as meaning it declined to exercise jurisdiction over those claims. Therefore, despite the court's obiter dictum concerning the validity of the release with respect to "all the substantive claims raised by the parties," (emphasis added) we find that its dismissal of the state law claims was not a dismissal on the merits.
IV
15The decision of the district court granting summary judgment on the federal claims and dismissing the state law claims is--
