US Mortgage, Inc. v. Saxton ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
U.S. MORTGAGE, INC., a Nevada 
corporation; JOHN KEILLY, an
individual; JOHN W. BROUWERS,
MEMORANDUM DISPOSITION,
BROUWERS FAMILY LIMITED
PARTNERSHIP, FIRST SAVINGS BANK;
COMMUNITY COLLEGE OF SOUTHERN
NEVADA FOUNDATION; CONNELLY
FAMILY TRUST, Terry Connelly and
Mary Connelly, Trustees; ALISA
CROMER; DOVE, LLC; GERALD AND
LUCETTE DOWLINGS TRUST DTD
07/06/99, Gerald and Lucette
Dowling, Trustees; DR. No. 04-17494
INVESTMENTS, LTD.; LORRAINE A.
ENGLE, Trustee of the Lorraine A.  D.C. No.
CV-03-01615-SMM
Engle Family Trust UAD OPINION
05/31/79; GUY GAGNON, Trustee of
the Gagnon Family Trust; DIANA
JOAN GAGNON, Trustee of the
Gagnon Family Trust; ARLENE M.
GARMAN LIVING TRUST DTD
02/13/01, Arlene Garman, Trustee;
GUNNING FAMILY TRUST UAD
12/09/94, Sean and Emily
Gunning, Trustees; BARBARA K.
HANFORD LIVING TRUST UAD
05/03/96; MICHAEL HARLAN; CARL
JENSEN, Trustee of the Jensen
Family Trust UAD 10/27/90;

8389
8390 U.S. MORTGAGE, INC. v. SAXTON
JANET JENSEN, Trustee of the 
Jensen Family Trust UAD
10/27/90; JOHN M. KEILLY, Trustee
of the Keilly Family Trust; JO M.
KEILLY, Trustee of the Keilly
Family Trust; WILLIAM KREGER
IRA ROLLOVER ACCOUNT,
CUSTODIAN OF THE FIRST SAVINGS
BANK, agent First Savings Bank;
MARVIN L. REHKOP FAMILY TRUST;
EUGENE H. REISE; LEONARD
RODOWICK, Trustee for the
Rodowick Family Trust; ALICE
RODOWICK, Trustee for the
Rodowick Family Trust; SCHEER
FAMILY TRUST, Ronald W. Scheer 
and Lori Scheer, Trustees; SCHLAF
FAMILY TRUST, Pauline M. Schlaf
Trustee; ROBERT SEGA; ALLIS SEGA;
VELATIA SPEZIALE, Trustee of the
1994 Speziale Living Trust; DALE
STERNER; WINSTROM PROPERTIES,
INC.; EILEEN WRIGHT; NEVADA
INVESTORS, INC.; STANLEY AMES
TRUST DTD 09/09/86, Stanley
Ames, Trustee; EDWARD U. AUSTIN
REVOCABLE TRUST; EDWARD U. AND
MARJORIE B. AUSTIN UNITRUST
UAD 12/01/95, Robert Austin,
Trustee; MARCEL BAREL TRUST;

U.S. MORTGAGE, INC. v. SAXTON 8391
ROBERT J. BELL, Trustee of the 
Robert J. Bell and Virginia M.
Bell Trust; VIRGINIA M. BELL,
Trustee of the Robert J. Bell and
Virginia M. Bell Trust; VERIE
BLOOM; MICHAEL B. CHAPMAN,
JTWROS; MARGARET B. CHAPMAN,
JTWROS; ECONOMIC STUDIES, INC.;
PHILIP ENGLE FAMILY PARTNERSHIP,
Philip Engel, Trustee, as General
Partner; PHILIP ENGEL AND ADELE
ENGEL FAMILY TRUST, Philip Engel,
Trustee; WALLEEN Y. EVESLAGE;
LARRY W. FIORENZI; KARL S.
GANZ; KOLAD 5, a Nevada Limited
Liability Company, et al.,
Plaintiffs-Appellants,
v. 
JAMES C. SAXTON; JANE DOE
SAXTON; DOUGLAS HENSLEY,
husband; JANE DOE HENSLEY, wife;
MARC S. HECHTER, husband; JANE
DOE HECHTER, wife; TIMOTHY J.
ADAMS, husband; JANE DOE
ADAMS, wife; MICHELE SAXTON-
PORI, wife; JOHN DOE SAXTON-PORI,
husband; KATRYN WONDERS, wife;
JOHN DOE WONDERS, husband;
KIRK SCHERER, husband; JANE DOE
SCHERER, wife; MELODY J.
SULLIVAN; JOHN DOE SULLIVAN,
husband; DELOITTE AND TOUCHE, a
limited liability partnership,
Defendants-Appellees.

8392 U.S. MORTGAGE, INC. v. SAXTON
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted
April 19, 2007—San Francisco, California
Filed July 13, 2007
Before: Stephen Reinhardt, Jay S. Bybee, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
U.S. MORTGAGE, INC. v. SAXTON 8395
COUNSEL
George C. Lazar, Fox Johns Lazar Pekin & Wexler, APC, San
Diego, California, for the plaintiffs-appellants.
David M. Furbush, O’Melveny & Myers LLP, Menlo Park,
California, for the defendants-appellees.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Plaintiffs-appellants U.S. Mortgage, et al., appeal the dis-
missal of their lawsuit against defendants-appellees Saxton,
Inc. (Saxton), Deloitte and Touche LLP, et.al., alleging,
among other things, violations of Arizona law by incorpora-
tion of false financial information into Saxton’s regulatory fil-
ings on which plaintiffs relied in making several loans and
granting several loan-related concessions to Saxton and its
affiliates. Defendants removed the lawsuit to federal court
under the Securities Litigation Uniform Standards Act of
1998, 15 U.S.C. § 78bb (SLUSA), and the district court dis-
missed the lawsuit for failure to state a claim upon which
8396 U.S. MORTGAGE, INC. v. SAXTON
relief can be granted in conformity with SLUSA. We affirm
the removal and the dismissal of the lawsuit.
FACTUAL BACKGROUND
Defendant Saxton1 is a real estate development company
incorporated and domiciled in Nevada. At all times relevant
to this appeal until June 14, 2000, Saxton’s stock was listed
and publicly traded on the NASDAQ exchange2 and Saxton
was engaged in several real estate development projects that
it financed, in part, with loans from individuals, trusts, and
commercial investors. The plaintiff class consists of hundreds
of investors. Plaintiffs’ claims arise out of twelve separate
loan investments that Saxton solicited from various members
of the plaintiff class to finance several of its projects and
activities. The twelve loan transactions alleged in plaintiffs’
second amended complaint (SAC) are as follows:
1. Pelican Creek Loan:
In December 1996, 29 members of the plaintiff class made
a combined loan of $1,500,000 to Savannah, LLC, a Nevada
limited liability company, to finance the construction of living
units in a residential area of Clark County, Nevada. The loan
was evidenced by a promissory note secured by the lien of a
deed of trust on the property. In 1999, Pelican Creek Develop-
ment, Inc., whose president was defendant James Saxton,
acquired Savannah’s interest in the relevant property. At Peli-
can Creek’s request, the plaintiff lenders consented to Pelican
Creek’s assumption of Savannah’s obligations under the note
and waived enforcement of the due on sale clause in the deed
1
Defendants in this case include both Saxton, Inc., a Nevada corpora-
tion, and James Saxton, the Chairman of the Board of Directors, President,
and Chief Executive Officer of Saxton, Inc. All references to “Saxton” in
this opinion are to Saxton, Inc., and not to James Saxton.
2
Saxton stock was officially delisted from the NASDAQ exchange on
June 14, 2000.
U.S. MORTGAGE, INC. v. SAXTON 8397
of trust securing the note, in exchange for which Saxton
extended a repayment guarantee to the plaintiff lenders. The
relevant plaintiff lenders allege that they would not have con-
sented to Pelican Creek’s assumption of the loan had they
known Saxton’s true financial condition.
2. Taylor Ranch Loan:
In January 1997, Saxton entered into an agreement with
Howard Hughes Properties, L.P., to acquire property in the
City of North Las Vegas. Saxton intended to develop the
property into residential units, but was required to obtain cer-
tain entitlements before being permitted to do so. Thereafter,
Saxton solicited and received a loan of $5,300,000 from a
large number of the plaintiff lenders. The loan was evidenced
by a note and was secured by the lien of a deed of trust on the
property. Saxton was unable to obtain the necessary rezoning
and was, therefore, unable to develop the property. Saxton
requested and received two extensions of maturity on the
note, but ultimately defaulted on the loan in March of 2000.
Collateral for the loan was eventually liquidated, leaving an
unpaid principal balance due of $941,205.12. The plaintiff
lenders allege that they relied on Saxton’s misrepresentations
of financial strength in its public filings, and would not have
granted the extensions had they known Saxton’s true financial
condition.
3. The Saxton $1,220,000 Loan:
In October 1997, Saxton sought a $1,220,000 working cap-
ital loan from a number of plaintiff lenders. The loan was evi-
denced by a note and was secured by a pledge of 491,754
shares of Saxton stock owned by defendant James Saxton. In
alleged reliance on misrepresentations concerning Saxton’s
financial strength as reflected in its public filings, plaintiffs
agreed to two extensions of the loan. Saxton defaulted on the
loan in March of 2000.
8398 U.S. MORTGAGE, INC. v. SAXTON
4. The Corte Madera Loan:
In late 1997, 23 plaintiff lenders loaned Corte Madera, LLC
the sum of $2,000,000 to permit it to acquire 15.8 acres of
real property in the City of Las Vegas. Corte Madera intended
to develop the property into a 192-unit town home project.
The loan was represented by a note and secured by the lien
of a deed of trust on the property and was guaranteed by Sax-
ton. Saxton subsequently entered into an agreement with
Corte Madera whereby Saxton agreed to construct the town
homes and to serve as Corte Madera’s manager. Plaintiffs
agreed to two extensions of the note’s maturity date, again in
alleged reliance on misrepresentations in Saxton’s public fil-
ings. The note went into default in March of 2000.
5. The Sutter Creek Loan:
In December 1997, numerous plaintiff lenders loaned funds
to Saxton to enable it to acquire the interest of Sutter Creek,
LLC in a subdivision project in Clark County, Nevada. The
loan was evidenced by a note secured by the lien of a deed of
trust on the acquired property. The remaining principal bal-
ance due on the loan is $877,347. Plaintiffs allege that they
were induced by misrepresentations in Saxton’s public filings
to agree to extensions of the note and to refrain from exercis-
ing available rights under the deed of trust. Saxton defaulted
on this loan in March of 2000.
6. The United Mortgage Loan:
In June 1998, certain plaintiff lenders loaned funds to U.S.
Mortgage Corporation to permit it to acquire and develop cer-
tain real property in Clark County, Nevada. The loan is evi-
denced by a note and secured by the lien of a deed of trust on
the property. The outstanding principal balance of the loan is
$7,957,591. Saxton agreed to manage the construction of
warehouses on the acquired property and also executed a
repayment guarantee and an environmental and accessability
U.S. MORTGAGE, INC. v. SAXTON 8399
indemnity agreement for the benefit of the plaintiff lenders.
Plaintiff lenders allege that Saxton used the proceeds of the
loan to pay off an existing line of credit with one of its institu-
tional lenders and not for the purposes represented. These
plaintiffs also allege that defendants made misrepresentations
and permitted omissions in Saxton’s public filings and that
they relied on these misrepresentations and omissions both in
making the loans and in failing to exercise remedies included
in the loan agreements.
7. The Sterling Springs Loan:
In September 1998, certain plaintiff investors made an
$8,590,000 loan to Saxton to enable it to fund certain con-
struction costs in its Sterling Spring project in Clark County,
Nevada and to secure release of the project from the liens of
several institutional lenders. The loan was evidenced by a
note and secured by the lien of a deed of trust on the project.
Saxton defaulted on the loan in March of 2000. The remain-
ing principal balance of the loan is $6,558,775. Plaintiffs
allege unspecified harm from reliance on misrepresentations
in Saxton’s public filings.
8. The Diamond Key Acquisition Loan:
In November 1998, Saxton sought a $1,000,000 short-term
loan from 15 plaintiff lenders to fund its acquisition of Dia-
mond Key Homes, Inc., a Phoenix-based construction com-
pany. The loan was evidenced by a note and was secured by
a pledge of certain Saxton stock held by defendants James and
Dorothy Saxton. In 1999, certain of the plaintiff lenders
agreed to an extension of the maturity date of the loan while
other lenders were paid in full. Saxton defaulted on the note
in March of 2000. Plaintiffs allege unspecified harm from
reliance on misrepresentations in Saxton’s public filings.
9. The Diamond Key Loan:
In March 1999, 21 plaintiff lenders made a $1,000,000 loan
to Saxton affiliate Diamond Key Homes to enable it to
8400 U.S. MORTGAGE, INC. v. SAXTON
develop certain Arizona real property. The loan was evi-
denced by a note and secured by the lien of a deed of trust on
the lots to be developed. Diamond Key Homes defaulted on
the loan and the involved plaintiff lenders allege unspecified
harm from reliance on misrepresentations in Saxton’s public
filings.
10. The Levitz Plaza Loan:
In September 1999, Saxton approached Investors Mortgage
Corporation, a Nevada mortgage broker, seeking a loan to
consolidate certain existing loans and to provide working cap-
ital. Certain plaintiff lenders made a $5,655,000 loan to Sax-
ton and its affiliates, Levitz Plaza, LLC, and Diamond Key
Homes. The loan was evidenced by a note and was secured
by the liens of deeds of trust on a number of properties in
Nevada and Arizona. This loan also went into default in
March of 2000 and has an outstanding principal balance of
$5,336,200. Plaintiff lenders allege unspecified harm from
reliance on misrepresentations in Saxton’s public filings.
11. The Saxton $1,025,000 Loan:
In December 1999, Saxton executed a note for $1,025,000
to 33 plaintiff lenders, which note was secured by the pledge
of 691,050 shares of Saxton stock. Saxton defaulted on the
loan in March of 2000. Plaintiff lenders claim unspecified
harm from reliance on misrepresentations in Saxton’s public
filings.
12. Arizona Project:
In February 2000, a group of plaintiff lenders loaned
$1,400,000 to Diamond Key Homes alone and $2,600,000 to
Diamond Key Homes and Saxton. The $1,400,000 loan was
secured by the lien of a deed on trust on property in Maricopa
County, Arizona and the proceeds of the loan were to be used
to develop the property securing the loan. The $2,600,000
U.S. MORTGAGE, INC. v. SAXTON 8401
loan was secured by the assignment of an interest in a pur-
chase contract for land near Tucson, Arizona. The loan pro-
ceeds were to be used to develop the property being acquired.
The borrowers on both these loans defaulted in March of
2000. Plaintiff lenders claim unspecified harm from reliance
on misrepresentations in Saxton’s public filings.
PRIOR PROCEEDINGS
In 2000, Saxton voluntarily restated its financial results to
correct a miscalculation of certain interest expenses. The
incorrect interest calculation had caused Saxton to overstate
its earnings in several public filings and accompanying press
releases in 1998 and 1999. Certain of the individual defen-
dants were signatories of the regulatory filings, and defendant
Deloitte & Touche was responsible for auditing and approv-
ing those filings. The restatement resulted in an increase of
approximately 4.7% in Saxton’s total expenses for the first
three quarters of 1999.
Following the restatement, certain plaintiffs—not parties to
this suit—brought a securities class action in Nevada federal
district court against Saxton, several of its directors and offi-
cers, and Deloitte & Touche. The complaint alleged that
defendants issued false financial statements in order to inflate
the price of Saxton stock, and that class members relied upon
the misrepresentations to purchase the stock at that inflated
price. The Nevada complaint further alleged that Saxton used
its artificially-inflated shares as payment for its acquisition of
several entities, including Diamond Key Homes and Home-
bank Mortgage Corporation.
The Nevada district court dismissed the complaint for fail-
ure to comply with the substantive and procedural require-
ments of the Private Securities Litigation Reform Act of 1995,
8402 U.S. MORTGAGE, INC. v. SAXTON
15 U.S.C. § 78u-4 (PSLRA). The dismissal of the Nevada
lawsuit was the subject of a separate appeal to this court.3
Following dismissal of the federal claim, present plaintiffs
filed a substantially similar complaint in Arizona state court
and a first amended complaint (FAC) in the same court sev-
eral months later. Both the Nevada and Arizona complaints
pled the same essential misconduct, but the Arizona com-
plaint claimed violations of Arizona state law rather than fed-
eral law.4 While the Nevada complaint only presented
allegations concerning the purchase of Saxton stock, the FAC
pled that the plaintiffs had loaned Saxton money as invest-
ment interests and listed several specific projects to which
these loans related. The FAC includes an extensive list of
individual investors who extended loans to Saxton in support
of various real estate projects.5 The essential theory of liability
in the FAC is that the loans would not have been made,
renewed, or continued if plaintiffs had known Saxton’s true
financial condition or had plaintiffs not relied on Saxton’s
erroneous financial statements.
The defendants removed the action to the Arizona district
court under SLUSA. Plaintiffs filed a motion to remand,
claiming that SLUSA did not apply to their lawsuit, and sub-
mitting a declaration purporting to add additional facts to sup-
plement the complaint. The district court denied plaintiffs’
remand motion, holding that SLUSA barred the complaint.
While the district court noted that SLUSA authorizes outright
dismissal of a SLUSA barred lawsuit, it nevertheless gave
plaintiffs an opportunity to file a second amended complaint
3
In re Saxton, Inc. Securities Litigation, No. 02-16172. The decision in
that appeal is noted in an unpublished memorandum disposition.
4
Present plaintiffs have acknowledged this by arguing in their motion to
remand that they, “having been shut out of federal court, are simply
endeavoring to prosecute state law claims that are not preempted by
SLUSA.”
5
Most plaintiffs lent between $10,000 and $50,000.
U.S. MORTGAGE, INC. v. SAXTON 8403
in an attempt to meet the requirements of SLUSA while
avoiding the impediments of the PSLRA.
Plaintiffs filed a 207-page SAC that differed substantially
from the FAC in form, but not in substance. Whereas the FAC
gave one comprehensive list of all plaintiff lenders and one
comprehensive set of factual allegations, the SAC divides the
plaintiff lenders into twelve overlapping sets and alleges indi-
vidualized facts regarding the twelve loan transactions. As
alleged in the SAC, some factual differences exist among the
different loan transactions; however, the underlying allega-
tions of Saxton’s misconduct remain virtually unchanged. As
was done in the FAC, the SAC claims that Saxton, through its
officers and employees, made material misrepresentations
concerning the financial status of the company in its SEC fil-
ings and other public statements; that Deloitte & Touche
failed to comply with the applicable accounting standards in
approving those misrepresentations; and that the plaintiff
lenders reasonably relied on the misrepresentations and, as a
result, suffered damages.
The essential theories of legal liability also remained
unchanged in the SAC. The FAC alleges five theories of lia-
bility: negligence, negligent misrepresentation, and fraud
against all defendants; breach of fiduciary duty against the
individual defendants; and aiding and abetting breach of duty
against Deloitte & Touche. The SAC alleges these same five
theories of liability against these same defendants, but it sub-
divides them based on the particular transaction involved and
also adds additional theories regarding several of the transac-
tions. The SAC also clarifies that SEC rules and regulations6
are the sources of defendants’ duties and that those duties
6
The allegations of negligence and negligent misrepresentation specifi-
cally identify SEC rules and regulations as the source of the duty. The
allegations of breach of fiduciary duty, however, identify no specific
source of that fiduciary duty. Presumably plaintiffs refer to an unspecified
provision of Arizona state or common law.
8404 U.S. MORTGAGE, INC. v. SAXTON
were allegedly breached by misrepresentations in public fil-
ings and other public statements.
The district court dismissed the SAC with prejudice. Plain-
tiffs appeal the dismissal to this court.
STANDARD OF REVIEW AND JURISDICTION
We review the grant of a motion to dismiss and the denial
of a motion to remand de novo. Patenaude v. Equitable Life
Assurance Soc’y of U.S., 290 F.3d 1020, 1023 (9th Cir. 2002).
We review the denial of leave to amend for abuse of discre-
tion. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir.
2002). “Dismissal without leave to amend is improper unless
it is clear, upon de novo review, that the complaint could not
be saved by any amendment.” Id. (citing Polich v. Burlington
N., Inc., 942 F.2d 1467, 1472 (9th Cir. 1991)).
The district court had jurisdiction over the removed action
under SLUSA, 15 U.S.C. § 78bb(f)(1). We have appellate
jurisdiction over the dismissal under 28 U.S.C. § 1291.
DISCUSSION
I. Statutory Background.
The historical background of Congress’ enactment of the
PSLRA and its subsequent enactment of SLUSA is well-
known and well-documented elsewhere. See, e.g., Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 126 S. Ct. 1503,
1510-12 (2006); Falkowski v. Imation Corp., 309 F.3d 1123,
1128 (9th Cir. 2002); Spielman v. Merrill Lynch, Pierce, Fen-
ner & Smith, Inc., 332 F.3d 116, 122-24 (2d Cir. 2003). Nev-
ertheless, we briefly summarize key points of this history that
are relevant to the resolution of this case. In 1995, Congress
passed the PSLRA because it was distressed with the prolifer-
ation and cost of allegedly meritless federal securities class
actions. The PSLRA sought to curb abusive and frivolous
U.S. MORTGAGE, INC. v. SAXTON 8405
securities suits by imposing new procedural and substantive
requirements. Among other things, the PSLRA (1) required
plaintiffs to identify in their pleadings actual statements
alleged to have been misleading and particular facts support-
ing a “strong inference” that the defendants acted with the
required scienter, (2) imposed an automatic stay of discovery
during the pendency of any motion to dismiss, and (3) estab-
lished safe-harbors for certain forward-looking statements.
Dabit, 126 S. Ct. at 1510-11; see also Patenaude, 290 F.3d at
1025; In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970,
974 (9th Cir. 1999).
[1] Although the PSLRA was effective in reducing alleg-
edly frivolous federal securities claims, this was largely
because class action attorneys avoided its reach by filing their
securities class actions in state court under state and common
law. Congress recognized this unexpected development in a
joint House-Senate Committee report, noting that the decline
in federal securities class actions following the enactment of
the PSLRA was accompanied by a corresponding increase in
state class actions. See H.R. Conf. Rep. No. 105-803 (1998).
Congress enacted SLUSA to foreclose this alternative. Paten-
aude, 290 F.3d at 1025. To that end, SLUSA permits removal
and dismissal of “covered class actions,”7 brought under state
7
SLUSA defines the term “covered class action” as:
(i) any single lawsuit in which—
(I) damages are sought on behalf of more than 50 persons
or prospective class members, and questions of law or
fact common to those persons or members of the pro-
spective class, without reference to issues of individu-
alized reliance on an alleged misstatement or
omission, predominate over any questions affecting
only individual persons or members; or
(II) one or more named parties seek to recover damages
on a representative basis on behalf of themselves and
other unnamed parties similarly situated, and ques-
tions of law or fact common to those persons or mem-
8406 U.S. MORTGAGE, INC. v. SAXTON
law, alleging a misrepresentation or omission of material fact
in connection with the purchase or sale of a “covered security.”8
15 U.S.C. §§ 78bb(f)(1) and (2);9 Falkowski, 309 F.3d at
1128.
II. Propriety of the Initial Removal of the
Arizona Action.
As noted, defendants removed the Arizona action to federal
court under SLUSA and plaintiffs filed a motion to remand
the case back to Arizona state court. In their opening brief,
plaintiffs conceded that “if the remand motion were to be
determined solely on the basis of the First Amended Com-
bers of the prospective class predominate over any
questions affecting only individual persons or mem-
bers; or
(ii) any group of lawsuits filed in or pending in the same court
and involving common questions of law or fact, in which—
(I) damages are sought on behalf of more than 50 per-
sons; and
(II) the lawsuits are joined, consolidated, or otherwise
proceed as a single action for any purpose.
15 U.S.C. § 78bb(f)(5)(B).
8
SLUSA defines the term “covered security” as:
a security that satisfies the standards for a covered security speci-
fied in paragraph (1) or (2) of section 18(b) of the Securities Act
of 1933, at the time during which it is alleged that the misrepre-
sentation, omission, or manipulative or deceptive conduct
occurred, except that such term shall not include any debt secur-
ity that is exempt from registration under the Securities Act of
1933 pursuant to rules issued by the Commission under section
4(2) of that Act.
15 U.S.C. § 78bb(f)(5)(E).
9
This provision amends the Securities Exchange Act of 1934. An identi-
cal provision, codified at 15 U.S.C. § 77p, amends the Securities Act of
1933.
U.S. MORTGAGE, INC. v. SAXTON 8407
plaint’s allegations, their motion to remand was properly
denied [because it] did not clearly delineate the varying facts
and circumstances applicable to each loan.” Appellant’s
Opening Brief at 46. While this concession arguably resolves
the question of initial removability, plaintiffs still argue that
the district court erred by failing to look beyond the face of
the FAC to consider a declaration that plaintiffs presented in
support of the motion detailing the specifics of the various
loans at issue. This argument fails.
[2] SLUSA expressly applies to covered class actions “al-
leging” fraud in connection with the purchase or sale of a cov-
ered security, 15 U.S.C. § 78bb(f)(1), and authorizes removal
and dismissal based on the allegations in the complaint and
does not require any additional evidentiary showing from
either party. See Williams v. Costco Wholesale Corp., 471
F.3d 975, 976 (9th Cir. 2006) (“the propriety of removal is
determined solely on the basis of the pleadings filed in state
court”) (citing Sparta Surgical Corp. v. Nat’l Ass’n of Sec.
Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998)). While the
court may permit the defendant to support removal by supple-
menting the pleadings with additional evidence of SLUSA’s
applicability, see Lasley v. New Eng. Variable Life Ins. Co.,
126 F. Supp. 2d 1236, 1239 (N.D. Cal. 1999), no authority
requires that a district court must consider additional evidence
from the plaintiffs on a motion to remand. Moreover, any
error that may have occurred due to the district court’s failure
to take account of the additional evidence in plaintiffs’ decla-
ration was cured by its grant of leave to amend. Plaintiffs
incorporated the essential factual information in the declara-
tion into their SAC, and the district court considered those
facts in its evaluation of that amended complaint.
III. SLUSA does not prohibit post-removal amendment
of a complaint.
[3] Whether SLUSA allows or prohibits amendment of the
complaint in a removed action is an issue of first impression
8408 U.S. MORTGAGE, INC. v. SAXTON
in this circuit. As a general rule, a plaintiff “may not compel
remand by amending a complaint to eliminate the federal
question upon which removal was based.” Sparta Surgical
Corp., 159 F.3d at 1213. This principle is applicable to
SLUSA, which “stands as an express exception to the well-
pleaded complaint rule, and its preemptive force cannot be
circumvented by artful drafting.” Rowinski v. Salomon Smith
Barney, Inc., 398 F.3d 294, 304 (3d Cir. 2005). Following this
rationale, other circuits that have considered the issue have
not allowed a plaintiff class to amend its way around a
SLUSA dismissal, at least where the amended complaint,
“fairly read,” still contains allegations of fraud or deception
involving a covered security. See Dudek v. Prudential Sec.,
Inc., 295 F.3d 875, 879-80 (8th Cir. 2002) (plaintiffs’ omis-
sion of certain fraud allegations previously pled in a different
case did not save complaint from SLUSA dismissal); Behlen
v. Merrill Lynch, 311 F.3d 1087, 1095-96 (11th Cir. 2002)
(dismissing claims under SLUSA despite attempt to remove
federal claims by amendment).
[4] However, Congress included no express prohibition
against amendment and no court has held that SLUSA com-
pletely and categorically bars any amendment of the com-
plaint following removal. Moreover, there is precedent in the
district courts of this circuit for the view that a plaintiff may
avoid SLUSA dismissal through amendment. For example, in
Schuster v. Gardner, 319 F. Supp. 2d 1159 (S.D. Cal. 2003),
the district court permitted plaintiffs to amend their complaint
to avoid SLUSA dismissal. The court credited the plaintiffs’
argument that any federal claim in the original complaint was
inadvertently pled, allowed amendment, and remanded the
resulting state-law action to state court. Id. at 1164.10 Simi-
10
Specifically, the court reasoned that while “subject matter jurisdiction
is generally determined by looking at the facts as pled in the complaint
operative at the time the notice of removal is filed, . . . defendants have
the burden of establishing federal jurisdiction, and any doubt as to the
right of removal must be construed in favor of remand.” Id. at 1163 (inter-
nal citations omitted).
U.S. MORTGAGE, INC. v. SAXTON 8409
larly, in Chinn v. Belfer, No. 02-00131, 2002 WL 31474189
(D. Or. 2002), the court noted that “[i]nterpreting Ninth Cir-
cuit authority, other district courts have granted leave to
amend a removed complaint to eliminate federal claims.” Id.
at *7 (collecting cases). The court accordingly allowed plain-
tiffs the opportunity to amend to eliminate any federal claim
and thereby avoid SLUSA dismissal.
[5] We are not, of course, bound by district court decisions,
and there are certainly defensible policy justifications for the
defendants’ position. Allowing amendment of claims to avoid
dismissal could allow plaintiffs to “artfully plead” their way
around federal jurisdiction and back into state court—by some
accounts, precisely what SLUSA was meant to prevent. See
Rowinski, 398 F.3d at 304. However, district courts that have
confronted the issue have also recognized the inequity of dis-
missing otherwise valid and viable state law claims on the
ground that plaintiff pled— perhaps inadvertently—a cause of
action that may be construed as federal in nature. In light of
the statutory silence on the issue in SLUSA, the existence of
competing policy rationales, and the fact that the granting or
denial of leave to amend is ordinarily a matter left to the dis-
cretion of the district court, we hold that SLUSA does not
prohibit amendment of the complaint after removal.
IV. The district court properly dismissed the Second
Amended Complaint for failure to state a claim in
conformity with SLUSA.
[6] Having concluded that the Arizona action was properly
removed and that the district court properly permitted plain-
tiffs to amend the FAC, we turn to the propriety of the district
court’s dismissal of the SAC with prejudice.11 On appeal,
11
We review denial of leave to amend only for abuse of discretion, and
generally find that such discretion is not abused if further amendment
would be futile. See Polich, 942 F.2d at 1472. The district court here did
not abuse its discretion in denying further leave to amend. It had already
given plaintiffs one chance to amend, and plaintiffs essentially re-pled the
same facts and legal theories. Most significantly, plaintiffs conceded in
oral argument before the district court that they could not improve on the
SAC beyond mere “tweaking.”
8410 U.S. MORTGAGE, INC. v. SAXTON
plaintiffs concede the first three elements of SLUSA preemp-
tion: that (1) the class action here is a “covered” class action,
and that it alleges (2) state and common law claims and (3)
a misrepresentation or omission of material fact.12 Plaintiffs
do, however, challenge elements four and five, claiming that
(4) the misrepresentations or omissions at issue were not “in
connection with” the purchase or sale of a security under 15
U.S.C. § 78bb(f)(1)(A), and (5) the action does not involve
“covered securities” within the meaning of 15 U.S.C.
§ 78bb(f)(5)(E). Both arguments fail.
In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit,
126 S. Ct. 1503 (2006), the Supreme Court dramatically sim-
plified the analysis of whether a particular complaint alleges
fraud in connection with the purchase or sale of a covered
security within the meaning of SLUSA. In Dabit, the plaintiff
class members were stock brokers who purchased and held
various stocks during a period of approximately one year. The
plaintiffs filed suit against Merrill Lynch in federal court
under Oklahoma state law, alleging that the investment bank-
ing firm violated the “fiduciary duty and covenant of good
faith and fair dealing it owed its brokers by disseminating
misleading research and thereby manipulating stock prices,”
and that this misleading research induced them to hold shares
they would have sold had they known the truth. Id. at 1507.
The plaintiff brokers argued that their claim was not subject
to SLUSA preemption because it was a pure “holding” claim
and did not allege the purchase or sale of any particular secur-
ity.
12
At oral argument, plaintiffs’ counsel attempted to resurrect an objec-
tion to the “covered class action” requirement by arguing that the SAC
effectively disaggregated claims based on separate loan transactions,
thereby bringing it outside SLUSA’s numerical scope. In addition to being
waived by concession in the briefing, see Currier v. Potter, 379 F.3d 716,
723 n.4 (9th Cir. 2004), this argument is wrong on its merits. While plain-
tiffs’ counsel might have avoided SLUSA’s reach by bringing each of the
individual claims separately in Arizona state court, he did not do so in the
first instance and did not attempt in the SAC to disaggregate the claims
into separate actions.
U.S. MORTGAGE, INC. v. SAXTON 8411
[7] A unanimous Supreme Court flatly rejected a strict
“purchaser/seller” requirement and endorsed an expansive
view of SLUSA’s preemptive scope. The Court began its
analysis by noting that “[t]he magnitude of the federal interest
in protecting the integrity and efficient operation of the mar-
ket for nationally traded securities cannot be overstated.” Id.
at 1509. The Court reasoned that, for purposes of SLUSA pre-
emption, “[t]he identity of the plaintiffs does not determine
whether the complaint alleges fraud ‘in connection with the
purchase or sale’ of securities. The misconduct of which
respondent complaints here—fraudulent manipulation of
stock prices—unquestionably qualifies as fraud ‘in connection
with the purchase or sale’ of securities.” Id. at 1515. It did not
matter that the plaintiffs themselves did not purchase or sell
a covered security; rather, “it [was] enough that the fraud
alleged ‘coincide’ with a securities transaction—whether by
the plaintiff or by someone else.” Id. at 1513 (emphasis added).13
[8] Plaintiffs in this case seek to avoid SLUSA dismissal by
arguing that they did not purchase or sell any listed security
in response to the misrepresentations, and that, therefore, they
do not allege fraud in connection with the purchase or sale of
a security. This is the very argument that Dabit rejected.
Plaintiffs allege a scheme to fraudulently hide Saxton’s finan-
cial condition—having the necessary effect of artificially
inflating the price of Saxton’s publicly traded shares—
through material misrepresentations in Saxton’s public filings
and other public statements. They allege harm from this
scheme through inducement by misleading financial informa-
tion to refrain from exercising rights under their several loan
documents. While plaintiffs themselves did not purchase or
13
The Court also distinguished the limitation it imposed in Blue Chip
Stamps v. Manor Drug Stores, 421 U.S. 723 (1975), that only actual buy-
ers and sellers of securities have a private right of action under Securities
and Exchange Commission Rule 10b-5, explaining that it previously
imposed that limitation because the private right of action was a judicially-
crafted remedy, and because even weak cases under Rule 10b-5 may have
substantial settlement value. Dabit, 126 S. Ct. at 1509-15.
8412 U.S. MORTGAGE, INC. v. SAXTON
sell any of the publicly traded shares of Saxton, Dabit does
not require that they do so. They have alleged fraud that
“coincide[s]” with the purchase or sale of securities, and
SLUSA therefore preempts their claim.
[9] For similar reasons, the Court’s decision in Dabit also
forecloses plaintiffs’ arguments on SLUSA’s “covered securi-
ty” requirement. SLUSA preemption applies only if the mis-
representation affects the purchase or sale of a “covered
security,” as defined at 15 U.S.C. § 78bb(f)(5)(E). Plaintiffs
advance different arguments for the various types of debt
instruments described in their SAC. They maintain that each
debt instrument is not itself a “covered security,” either
because it was not issued by a publicly-traded corporation,
was not in existence at the time of the alleged misrepresenta-
tions, is otherwise outside the scope of the statutory defini-
tion, or is eligible for one or more statutory exemptions.
However, the Supreme Court’s decision in Dabit renders all
these arguments irrelevant. Whether or not one or more of the
relevant debt instruments is a “covered security” does not
affect the applicability of SLUSA to this action because the
alleged harm stems from misrepresentations in Saxton’s pub-
lic filings and public statements. These misrepresentations
undoubtedly “coincide” with the purchase or sale of Saxton’s
publicly traded shares, and those shares are clearly “covered
securities” under SLUSA.
We our mindful of the general “presum[ption] that Con-
gress does not cavalierly pre-empt state-law causes of action.”
Dabit, 126 S. Ct. at 1514 (citing Medtronic, Inc. v. Lohr, 518
U.S. 470, 485 (1996) (alterations in original)). But, as the
Court noted in Dabit,
that presumption carries less force here than in other
contexts because SLUSA does not actually pre-empt
any state cause of action. It simply denies plaintiffs
the right to use the class action device to vindicate
certain claims. The Act does not deny any individual
U.S. MORTGAGE, INC. v. SAXTON 8413
plaintiff, or indeed any group of fewer than 50 plain-
tiffs, the right to enforce any state-law cause of
action that may exist.
126 S. Ct. at 1514. The holding in Dabit is thus both broad and
narrow in its application. The Court’s articulation of the “in
connection with” requirement is expansive, broad enough to
reach present plaintiffs. But it is also very narrow, in that
present plaintiffs could have completely avoided SLUSA’s
reach by pursuing their claims in groups of 50 or less or by
bringing a federal claim that meets the strict pleading require-
ments of the PSLRA.14 Instead, plaintiffs chose to proceed in
Arizona state court under Arizona state law as an aggregated
class of hundreds of plaintiff lenders, and it is access to that
procedural device that SLUSA denies. Our empathy for possi-
bly defrauded plaintiffs does not permit us to flout the clear
instruction of the United States Supreme Court.
V. The district court did not err by not remanding
viable state law causes of action under 15 U.S.C.
§ 78bb(f)(3)(D).
[10] SLUSA provides that “[i]n an action that has been
removed from a State court pursuant to paragraph (2) [as a
“covered class action”], if the Federal court determines that
the action may be maintained in State court pursuant to this
subsection, the Federal court shall remand such action to such
State court.” 15 U.S.C. § 78bb(f)(3)(D). Plaintiffs argue that
this statutory provision allows the district court to dismiss
only preempted claims and requires it to remand any remain-
ing viable state-law causes of action to the state court. It is not
14
We also note that SLUSA contains several express exemptions for
certain kinds of state actions, though plaintiffs are not eligible for these.
See, e.g., 15 U.S.C. § 78bb(f)(3)(A) (exempting actions based on the law
of the defendant’s state of incorporation or organization) and 15 U.S.C.
§ 78bb(f)(5)(C) (exempting pure derivative actions from the definition of
“covered class action”).
8414 U.S. MORTGAGE, INC. v. SAXTON
settled whether SLUSA either permits or requires the remand
of particular claims in a single suit that contains some claims
that are preempted, and some claims that are not. After the
Supreme Court’s decision in Dabit, however, plaintiffs have
no claims that avoid SLUSA preemption. Thus, there are no
viable state-law claims to remand, and we need not—and do
not—reach this issue in this case.
CONCLUSION
[11] Under the standards the Supreme Court announced in
Merrill Lynch v. Dabit, plaintiffs’ lawsuit is clearly covered
by SLUSA. We therefore hold that plaintiffs’ Arizona lawsuit
was properly removed to federal court under SLUSA and that
the district court properly dismissed the SAC with prejudice.
AFFIRMED.