Bondiett v. Novell, Inc. ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 7 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MARK BONDIETT and RONALD
G. ROSSI, as individuals,
Plaintiffs-Appellants,
v. No. 97-4054
(D.C. No. 96-CV-303J)
NOVELL, INC., a Delaware (D. Utah)
Corporation; ROBERT J.
FRANKENBERG, ALAN ASHTON,
ELAINE R. BOND, HANS-WERNER
HECTOR, JACK L. MESSMAN,
LARRY W. SONSINI, IAN R.
WILSON, JOHN R. YOUNG
and DAVID R. BRADFORD,
as individuals,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiffs Bondiett and Rossi appeal from the district court’s order granting
defendant Novell’s motion to dismiss their shareholders’ proxy challenge. Our
jurisdiction arises from 28 U.S.C. § 1291; see United States v. Storey, 2 F.3d
1037, 1040 (10th Cir. 1993). We review a district court’s dismissal pursuant to
Fed. R. Civ. P. 12(b)(6) de novo, whether based on jurisdiction, see Painter v.
Shalala, 97 F.3d 1351, 1355 (10th Cir. 1996), or failure to state a claim, see
Chemical Weapons Working Group, Inc. v. United States Dep’t of the Army, 111
F.3d 1485, 1490 (10th Cir. 1997).
Plaintiffs originally asserted claims against Novell under sections 10 and
14(a) of the Securities Exchange Act of 1934, Utah’s criminal code, and the
corporate law of both Utah and Delaware. Novell moved to dismiss the claims
under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. After a hearing, the
district court granted Novell’s motion, dismissing the federal claims with
prejudice and the state claims without prejudice. Plaintiffs now appeal, raising
essentially a single argument challenging the district court’s dismissal of their
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section 14(a) proxy claim against Novell. Plaintiffs have waived all other issues
by failing to pursue them on appeal. 1
Initially, we address a jurisdictional issue raised by defendant Novell on
appeal. Based on a provision in the 1995 Securities Reform Act, Novell contends
that this court lacks appellate jurisdiction because the district court’s order is not
final. That provision requires district courts to make findings about the parties’
compliance with Rule 11 of the Federal Rules of Civil Procedure. See 15 U.S.C.
§ 78u-4(c)(1). The district court in this case did not make the required findings
as part of its order granting Novell’s motion to dismiss.
Novell argues that the district court’s order is not appealable until the
required findings are made, based on the mandatory nature of the statute and the
court’s failure to file a judgment pursuant to Fed. R. Civ. P. 58. Further, it
asserts that the issues raised by the Rule 11 inquiry are so intertwined with the
issues raised on appeal that proceeding without the required findings would result
1
Plaintiffs’ opening brief contains two references to their section 10 claim:
one asserts that they, along with other purchasing shareholders, are entitled to
relief under section 10; the second asserts that the same standards of materiality
apply to both sections 10 and 14. Because plaintiffs present no specific argument
regarding their section 10 claim, they have abandoned that claim on appeal. See
United States v. Hardwell, 80 F.3d 1471, 1492, reh’g granted in part on other
grounds, 88 F.3d 897 (10th Cir. 1996). Similarly, plaintiffs present no argument
on their related state claims; any issues regarding those claims are also waived.
See State Farm Fire & Casualty Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir.
1994).
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in separate, and therefore, inefficient, appeals. We disagree. While the statute
mandates Rule 11 findings “upon final adjudication,” it does not require that
those findings be made as part of the court’s order disposing of the merits of the
case. Further, Rule 11 matters are routinely decided after final judgment, often
resulting in separate appeals. Compare White v. General Motors Corp., 977 F.2d
499, 500 (10th Cir. 1992) (separate appeal of sanctions orders) with Barrett v.
Tallon, 30 F.3d 1296, 1298 (10th Cir. 1994) (deciding together two separate
appeals from district court order, one leveling Rule 11 sanctions). We conclude
that the statute does not compel a different result in this case.
Plaintiffs’ single argument on appeal rests squarely on their
characterization of the district court’s ruling as based solely on standing. See
Appellant’s Br. at 16-17, 20-21. They further contend that Novell’s motion to
dismiss was “unsuccessful except as to result,” Reply Br. at 1, that the court’s
ruling was not based on any argument advanced by Novell before the district
court, id., and assert that the district court “made no substantive determination on
the merits of the case, but held it was unable to hear the matter.” Id. at 2. These
arguments misrepresent both the record and the district court’s ruling. While the
district court discussed plaintiffs’ standing, or what he termed “status” to bring a
proxy challenge absent personal reliance, see Appellant’s App. at 33, 38-39, it is
clear from the record that the court heard argument from the parties on all of the
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bases Novell urged in support of its motion to dismiss and discussed grounds
other than reliance as a basis for its dismissal, including injury and causation.
See id. at 33-35. Further, the district court’s oral ruling expressly concludes that
plaintiffs failed to state a claim and its final written order expressly grants
Novell’s motion to dismiss, which was based solely on Fed. R. Civ. P. 12(b)(6),
and not on jurisdictional grounds. See Appellant’s App. at 29.
Based on their assertion that the district court dismissed the case only
because it concluded plaintiffs did not have standing to bring a section 14(a)
claim against Novell absent personal reliance on the challenged proxy statements,
plaintiffs argue that the dismissal was in error. They contend that personal
reliance is not required to bring a section 14(a) proxy challenge. We agree. See,
e.g., 7547 Corp. v. Parker & Parsley Dev. Partners, 38 F.3d 211, 230 (5th Cir.
1994). Nonetheless, because we disagree with plaintiffs that lack of reliance was
the sole basis for the district court’s ruling and because alternate grounds
discussed at the hearing support that ruling, cf. United States v. Sandoval, 29 F.3d
537, 542 n.6 (10th Cir. 1994), we affirm the dismissal of plaintiffs’ case. 2
2
Plaintiffs obliquely contend that their suit may be a derivative action by
challenging the district court’s statement at the hearing to the contrary. See
Appellant’s Br. at 24. This argument has no merit; plaintiffs’ attorney clearly
conceded at the hearing before the district court that their action was not a
derivative suit. See Appellant’s App. at 37.
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Plaintiffs’ section 14(a) claim asserted that Novell omitted or misstated
material facts within certain proxy materials with intent to mislead or deceive its
shareholders. The challenged proxy statement called for re-election of current
directors to another term and a vote on certain salary proposals. The alleged
omissions and misstatements from the proxy statement dealt with prior and
planned future acquisitions and asset sales, the impact of those transactions on
Novell, and the financial condition of the company. On appeal, as in its motion to
dismiss before the district court, Novell contends that the required transactional
causation for a section 14(a) proxy claim is lacking. They argue that plaintiffs
have “failed to allege any connection between the alleged misrepresentations or
omissions in the Proxy Statement and any decision made at the Novell
shareholders’ meeting.” Appellee’s Br. at 11. Outside of a conclusory statement
that their claims against Novell are “directly relevant” to the matters voted on at
the shareholder’s meeting, Reply Br. at 7, plaintiffs do not address causation on
appeal. Further, the record suggests that they also failed to address this issue
before the district court, despite Novell’s arguments on point. 3
3
Plaintiffs did not include in their appendix on appeal a copy of their brief
opposing the motion to dismiss before the district court. Novell’s reply brief
before the district court states that “[p]laintiffs evade most of defendant’s
contentions, and ignore most of the case law presented in defendant’s brief.”
Appellee’s Supp. App., Vol. II, at 245.
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The Supreme Court discussed causation as an element of section 14(a)
claims in Mills v. The Electric Auto-Lite Co., 396 U.S. 375, 385 (1970):
Where there has been a finding of materiality, a shareholder has
made a sufficient showing of causal relationship between the
violation and the injury for which he seeks redress if, as here, he
proves that the proxy solicitation itself, rather than the particular
defect in the solicitation materials, was an essential link in the
accomplishment of the transaction.
Upon review of the entire record on appeal, we agree with Novell that causation
under these circumstances is too attenuated to state a claim under section 14(a).
None of the alleged omissions or misrepresentations in the challenged proxy
statement relate to matters which were voted on at the shareholders’ meeting. 4
Case law on point supports our conclusion. For example, in General
Electric Co. ex rel. Levit v. Cathcart, 980 F.2d 927 (3d Cir. 1992), the Third
Circuit held that the nexus between a shareholder vote to elect board members
and indemnify officers and directors and the alleged omissions from the proxy
statement regarding corporate misconduct and mismanagement was insufficient to
state a claim. The court said: “this is precisely the sort of claim that courts have
4
The court recognizes that, at this date, appellants’ equitable claims may be
moot. See Buckley v. Archer-Daniels-Midland Co., 111 F.3d 524 (7th Cir. 1997);
General Elec. Co. ex rel. Levit v. Cathcart, 980 F.2d 927, 934-35 (3d Cir. 1992).
However, in light of our determination that plaintiffs’ section 14(a) claim lacks
the required transactional causation to the matters voted upon at the April 1996
shareholders’ meeting, analysis of this possibility is not necessary. We also note
that neither of the parties raised the issue of mootness.
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repeatedly found insufficient to satisfy the transaction causation requirement.”
Id. at 933. In Cowin v. Bresler, 741 F.2d 410 (D.C. Cir. 1984), the District of
Columbia Circuit addressed causation under similar circumstances and concluded
that it was lacking because the injury alleged--continued fraudulent acts by the
board of directors--“was not a direct result of the misleading proxy statement.”
Id. at 428. The court stressed that damages must be shown to have resulted
directly from the authorized corporate transaction, rejecting a more lenient
standard that would allow shareholders to file suit on “claims that have no direct
relationship to the purpose of the proxy statement.” Id.; see also In re
Westinghouse Sec. Litig., 832 F. Supp. 948, 1000-01 (W.D. Pa. 1993)
(concluding, without expressly discussing causation, that allegations of failure to
disclose mismanagement of company did not state a claim under section 14(a)),
aff’d in part, rev’d in part on other grounds, 90 F.3d 696 (1996); cf. Royal
Business Group, Inc. v. Realist, Inc., 933 F.2d 1056 (1st Cir. 1991) (affirming
district court’s dismissal of action to recover expenses incurred in proxy context,
ruling that plaintiffs could not contend they were harmed as shareholders by
election, and noting “It is simply too much of a stretch to bring such a claim
within the causative sphere required for viability under Section 14(a).”).
Plaintiffs’ section 14(a) claim against Novell lacks the required
transactional causation and therefore fails to state a claim pursuant to
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Fed. R. Civ. P. 12(b)(6). The judgment of the United States District Court for the
District of Utah is AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
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