Erb, Barbara v. Alliance Captial Man , 423 F.3d 647 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3426
BARBARA ERB and ALADDIN INDUSTRIES, LLC MASTER
RETIREMENT TRUST, on behalf of themselves and all others
similarly situated,
Plaintiffs-Appellees,
v.
ALLIANCE CAPITAL MANAGEMENT, L.P.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04 C 485—G. Patrick Murphy, Chief Judge.
____________
ARGUED JUNE 2, 2005—DECIDED SEPTEMBER 2, 2005
____________
Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
FLAUM, Chief Judge. Barbara Erb brought a class action
in state court against Alliance Capital Management, L.P.
(“Alliance”), a mutual fund manager, asserting that Alliance
had breached a contract with her and other investors in one
of Alliance’s funds by buying poorly rated securities.
Alliance removed the suit to federal court under the
Securities Litigation Uniform Standards Act of 1998, Pub.
L. No. 105-353, 112 Stat. 3227 (“SLUSA”). SLUSA preempts
certain class actions based on state law alleging that a
defendant made “an untrue statement or omission of a
material fact in connection with the purchase or sale of”
2 No. 04-3426
federally-regulated securities. 15 U.S.C. § 77p(b). Alliance
argued that Erb’s alleged breach of contract claim was
really a claim of misrepresentation in disguise, and thus
preempted by SLUSA. The district court held that SLUSA
did not preempt Erb’s claim and remanded the case to state
court. Alliance failed to appeal that remand order.
Erb then filed an amended complaint in state court
adding Aladdin Industries, LLC Master Retirement Trust
(“Aladdin”) as a plaintiff and class representative. Like the
original, the amended complaint purports to state a claim
for breach of contract only. Alliance removed the case a
second time to federal court, arguing that the amendments
to the complaint make even more transparent that plain-
tiffs’ claim is for misrepresentation, not breach of contract.
Again, the district court held the claim not preempted by
SLUSA and remanded to state court. Alliance now appeals.
We find Alliance’s notice of appeal untimely and dismiss the
appeal for want of jurisdiction.
I. Background
On October 1, 2003, Erb filed a class action against
Alliance in Illinois circuit court. The original complaint
alleged that defendant managed the Alliance Premier
Growth Fund, a mutual fund formed to invest in large
capitalization growth stocks. The complaint asserted that
Alliance offered to sell shares of the fund through a prospec-
tus, and confirmed purchases of fund shares through
subscription and confirmation agreements. The complaint
claimed that the prospectus, subscription agreements, and
confirmation agreements collectively established the terms
of a contract with investors in the fund. Erb asserted that
she had invested in the fund and, by doing so, accepted the
terms of the alleged contract. The terms of that contract,
moreover, allegedly bound Alliance to purchase only “1-
rated securities,” stocks identified by Alliance’s proprietary
No. 04-3426 3
research as the best of the best investments. The complaint
claimed that Alliance breached that contract by “purchasing
shares of stock that, at the time of purchase, were not” 1-
rated. (Compl. ¶ 16.) The initial complaint sought to certify
as a class “[a]ll persons owning shares in the Alliance
Premier Growth Fund within the last 10 years who were
damaged by Alliance Capital’s purchase of stocks that were
not [1-rated] at the time of purchase.” (Id. ¶ 19.) The
complaint did not expressly accuse Alliance of making an
untrue statement or misrepresentation of material fact.
Alliance removed the case to federal court, asserting that
plaintiff’s claim, though in form alleged a breach of con-
tract, in substance asserted misrepresentation. On Febru-
ary 25, 2004, the district court held that SLUSA did not
preempt Erb’s claim and remanded the case to state court.
Aladdin did not appeal that order.
On June 24, 2004, Erb filed an amended complaint in
state court. The amended complaint adds Aladdin, an
institutional investor, as a plaintiff and class representa-
tive. The pleading asserts that Alliance distributed a fund
prospectus, marketing materials, and advertising materials
specifying that it would purchase only 1-rated securities for
the Premier Growth Fund. As alleged, the fund prospectus
and marketing and advertising materials proposed the
terms of a contract that, when accepted by fund investors,
bound Alliance to purchase only these highly rated securi-
ties for the fund. Allegedly, these materials also obligated
Alliance contractually to purchase only 1-rated securities
for other portfolios that, while not a part of the fund, had
the same investment strategy and objectives. The amended
complaint claims that Alliance breached this contract by
purchasing stocks that were not 1-rated. It seeks to certify
the following class:
All persons or entities holding an interest in the Portfo-
lios (including all persons or entities owning and
4 No. 04-3426
holding shares in the Alliance Premier Growth Fund)
between the date on which Alliance Capital’s . . .
portfolio managers no longer had discretion to purchase
any stock that was not [1-rated] by Alliance Capital
(believed to be late 1996) who were damaged by Alliance
Capital’s . . . portfolio management in breach of the
[prospectus, marketing materials, and advertising
materials] . . . .
(Am. Compl. ¶ 19.) Like the original complaint, the
amended complaint does not expressly accuse Alliance of
making an untrue statement or misrepresentation of
material fact.
On July 13, 2004, Alliance removed the case a second
time to federal court. It argued that the amended complaint
fundamentally changed the nature of the action and made
even more apparent that plaintiffs’ claims, though styled as
a breach of contract, were for misrepresentation and
therefore preempted by SLUSA. The district court again
disagreed and, on August 30, 2004, ordered the case
remanded to state court. On September 15, 2004, Alliance
filed a notice of appeal designating the August 30th remand
order as the order being appealed.
II. Discussion
Alliance argues that plaintiffs’ amended complaint states
a securities fraud claim in disguise, and that the district
court therefore should have dismissed it as preempted by
SLUSA. Plaintiffs contend that Alliance’s notice of appeal
is untimely. Erb and Aladdin assert that Alliance is at-
tempting to revisit the issues decided by the district court
in its February 25, 2004 remand order, an order that
Alliance did not appeal.
Assuming that 28 U.S.C. § 1447(d) does not block appel-
late jurisdiction, an order remanding a case to state court
No. 04-3426 5
is appealable immediately. Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 715 (1996). Where an order is immediately
appealable, usually a party may elect either to appeal right
away or wait until after the final judgment has been
entered. See Pearson v. Ramos, 237 F.3d 881, 883 (7th Cir.
2001) (“Even when there is a right of interlocutory appeal,
a party can wait till the case is over and then appeal,
bringing before us all nonmoot interlocutory rulings adverse
to him.”). Waiting to appeal from the final judgment would
be of little help to Alliance here because it seeks to dismiss
the suit on preemption grounds and avoid the costs of the
litigation. Cf. SEC v. Quinn, 997 F.2d 287, 290 (7th Cir.
1993) (noting that although a party may appeal from the
denial of qualified immunity either immediately or after
entry of final judgment, only an immediate appeal can
vindicate the right not to be tried at all). Moreover, SLUSA
directs that the preemption “decision in securities litigation
must be made by the federal rather than the state judi-
ciary.” Kircher v. Putnam Funds Trust, 373 F.3d 847, 850
(7th Cir. 2004) (“Kircher I”). Alliance therefore must appeal
right away.
If a party elects to appeal an interlocutory order immedi-
ately, it must do so within the time limits prescribed by
Federal Rule of Appellate Procedure 4. Otis v. City of
Chicago, 29 F.3d 1159, 1167 (7th Cir. 1994) (en banc). Rule
4 demands, subject to exceptions not relevant here, that a
party to a civil suit file a notice of appeal “within 30 days
after the judgment or order appealed from is entered.” Fed.
R. App. P. 4(a)(1)(A). “[A] timely notice of appeal is essential
to appellate jurisdiction.” United States v. Hirsch, 207 F.3d
928, 930 (7th Cir. 2000); see also Browder v. Director, Dep’t
of Corr., 434 U.S. 257, 264 (1978). The time limit would be
meaningless if, after the 30 days had elapsed, a party could
file a new motion and appeal from the order denying the
second motion. We therefore have held that a party seeking
review of an interlocutory order cannot enlarge the time for
6 No. 04-3426
noticing an appeal by filing a successive motion and
appealing the denial of the latter motion. See B.H. ex rel.
Pierce v. Murphy, 984 F.2d 196, 199 (7th Cir. 1993);
Buckhanon v. Percy, 708 F.2d 1209, 1212 (7th Cir. 1983);
United States v. City of Chicago, 534 F.2d 708, 711 (7th Cir.
1976). Unless the circumstances have changed significantly
since the entry of the original order, we will deem the notice
an appeal from that order, even though it may designate a
later order as the order being appealed. See SEC v. Suter,
832 F.2d 988, 990 (7th Cir. 1987). In such a case, the notice
of appeal will be timely only if filed within 30 days of the
entry of the original order. See id.; Gill v. Monroe County
Dep’t of Soc. Servs., 873 F.2d 647, 648 (2d Cir. 1989).
Alliance filed its notice of appeal more than 30 days after
the entry of the district court’s first remand order. Thus,
the timeliness of Alliance’s appeal turns on whether the
circumstances have changed sufficiently since the entry of
the first order.
Our caselaw does not define clearly how much or what
type of change will restart the time for filing an interlocu-
tory appeal. Common sense suggests that not any change in
circumstance will suffice. Cf. FTC v. Minneapolis-Honeywell
Regulator Co., 344 U.S. 206, 213 (1952) (statutes limiting
time for filing petition for writ of certiorari “are not to be
applied so as to permit a tolling of their time limitations
because some event occurred in the lower court after
judgment was rendered which is of no import to the matters
to be dealt with on review”). Rather, we conclude that the
change must bear on the issues sought to be argued on
appeal. Cf. Suter, 832 F.2d at 990; City of Chicago, 534 F.2d
at 710-11.
In this case, Alliance challenges the district court’s
holding that SLUSA does not preempt plaintiffs’ claim.
Defendant therefore must point to changes occurring since
the entry of the first remand order that bear on the preemp-
tion issue. SLUSA’s preemption clause states:
No. 04-3426 7
No covered class action based upon the statutory or
common law of any State or subdivision thereof may be
maintained in any State or Federal court by any private
party alleging—
(1) an untrue statement or omission of a material fact
in connection with the purchase or sale of a covered
security; or
(2) that the defendant used or employed any manipu-
lative or deceptive device or contrivance in connection
with the purchase or sale of a covered security.
15 U.S.C. § 77p. Thus, SLUSA preempts a claim only if it:
(i) is brought by a private party: (ii) is brought as a covered
class action; (iii) is based on state law; (iv) alleges that the
defendant misrepresented or omitted a material fact (or
employed a manipulative device or contrivance); and (v)
asserts that defendant did so in connection with the
purchase or sale of a covered security. See Disher v.
Citigroup Global Mkts. Inc., ___ F.3d ___, ___, 2005 WL
1962942, *4 (7th Cir. Aug. 17, 2005).
Alliance contends that changes between the original and
amended complaints give it new grounds to argue for
SLUSA preemption, and therefore a new chance to seek
appellate review. Before considering this contention, we
note that aspects of plaintiffs’ first and second pleadings
clearly do not differ in any way relevant to preemption.
Both complaints are brought by a private party or parties,
state claims based on state law, seek to certify a “covered
class action,” and involve “covered securit[ies]” as those
terms are defined by SLUSA. Neither complaint suggests
that Alliance employed a “manipulative or deceptive device
or contrivance.” Thus, Alliance has new grounds to argue
for preemption only if the amended complaint alleges,
where the original did not, that defendant: (i) made an
untrue statement or omission of material fact; or (ii) did so
in connection with the purchase or sale of a security.
8 No. 04-3426
Alliance highlights two changes between the original and
amended complaints that, it asserts, provide new grounds
to argue for preemption. First, it submits that the original
complaint alleged that it harmed investors only by holding
non-1-rated stocks, while the amended complaint asserts
that it purchased these lower rated securities. This change
between the pleadings, Alliance contends, gives it a stron-
ger argument that the claim is “in connection with the
purchase or sale of” a covered security. 15 U.S.C. § 77p(b).
The pleadings do not reflect this change. The original
complaint asserts that Alliance breached the alleged
contract “by purchasing shares of stock that, at the time of
purchase, were not” 1-rated. (Compl. ¶ 16.) Had Alliance
appealed the original remand order, it could have made the
same argument on appeal then that it seeks to make now.
See Gill, 873 F.2d at 649 (finding appeal from denial of a
successive motion untimely where, although the plaintiffs
presented additional material with the latter motion, the
“material was available to the plaintiffs when they made
the two previous motions,” and therefore “could not consti-
tute changed facts or circumstances”).
Second, Alliance points out that the original and amended
complaints rely on different documents as the basis for the
alleged contract. The original complaint asserted that the
fund prospectus, subscription agreements, and confirmation
agreements collectively established the terms of the
contract, while the amended complaint relies on the
prospectus, marketing materials, and advertising materials.
Defendant asserts that because marketing and advertising
materials rarely if ever give rise to a contract, the substance
of plaintiffs’ claim must be for misrepresentation or omis-
sion.
We do not find this change significant enough to enlarge
the time for filing an appeal. While the amended com-
plaint’s redefinition of the contract may weaken plaintiffs’
No. 04-3426 9
breach of contract claim, it does not strengthen Alliance’s
preemption argument. The amendment does not make
clear, in a way that was not apparent before, that plaintiffs
have artfully pleaded a misrepresentation claim under the
guise of breach of contract. We do not comment upon
whether SLUSA preempts either complaint, but conclude
only that the arguments Alliance presses now could have
been made in an appeal from the original remand order.
Since the changes embodied in the amended complaint do
not give Alliance new grounds to argue for SLUSA preemp-
tion, they do not enlarge the time for noticing an appeal.
As a final matter, Alliance suggests that our opinion in
Kircher I, decided after the district court’s first remand
order, worked a change in the law that entitles defendant
to a second chance to appeal. Kircher I held that, where a
case is removed to federal court under SLUSA, 28 U.S.C. §
1447(d) does not bar appellate jurisdiction over certain
orders remanding to state court. 373 F.3d at 849-50.
Alliance informs us that it “did not appeal the District
Court’s original remand order because, prior to this Court’s
decision in [Kircher I], it appeared that 28 U.S.C. § 1447(d)
precluded such an appeal.”
We assume without deciding that a change in the law
might reopen the time for filing an interlocutory appeal. We
also assume, solely for the purposes of argument, that a
change in the law relating only to appealability, but not to
the merits of the issues to be argued on appeal, could
restart the clock.1 Even on these assumptions, Alliance’s
argument fails because Kircher I did not change the law.
1
Kircher I did not address preemption—the issue Alliance asks
us to resolve on the merits. Our later opinion in Kircher v. Putnam
Funds Trust, 403 F.3d 478 (7th Cir. 2005) (“Kircher II”), discusses
preemption, but Alliance does not argue that Kircher II changed
the law.
10 No. 04-3426
See id. at 851 (“[O]ur disposition reflects nothing more than
application of settled circuit law to a different substantive
statute.”).
Because nothing of significance has changed since the
entry of the district court’s first remand order, we deem
Alliance’s notice of appeal a belated attempt to seek review
of that order. Accordingly, we must dismiss the appeal for
lack of jurisdiction. Our holding today does not, however,
insulate plaintiffs from the possibility of future appellate
review. Should plaintiffs amend their pleading yet again,
and that amendment gives Alliance new grounds to argue
for preemption, defendant could remove to federal court and
appeal an unfavorable district court order. See Benson v. SI
Handling Sys., Inc., 188 F.3d 780, 783 (7th Cir. 1999)
(permitting multiple removal petitions if changed circum-
stances give rise to additional grounds for removal); City of
Chicago, 534 F.3d at 710-11 (finding appeal from successive
motion timely where changed circumstances justified
revisiting issue decided by original order).
III. Conclusion
For the reasons stated herein, we DISMISS the appeal for
want of appellate jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-2-05