                  UNITED STATES COURT OF APPEALS

                          FOR THE TENTH CIRCUIT



DAVE SHELDON,

            Plaintiff-Appellant,

v.                                        Nos. 99-3202 & 99-3389

JAY VERMONTY; CARMEN
VERMONTY; POWER PHONE, INC.,
including all Directors and Officers;
NOAH STEINBERG; GERSHON
TANNENBAUM; ENRIQUE R.
CARRION, Dr.; TMC AGROWORLD,
INC., including all Directors and
Officers; MONTE CRISTI GROUP,
including all Directors and Officers;
MANHATTAN TRANSFER
REGISTRAR COMPANY, including
all Directors and Officers; HECTOR
CRUZ; JACK SAVAGE, individually
and as Director and Officer and all
Directors and Officers individually,
aka J. Wesley Savage; PRINCETON
RESEARCH,

            Defendants-Appellees,

      and

CHARLES SCHWAB & CO., INC.;
OLDE DISCOUNT CORPORATION;
PRINCIPAL FINANCIAL,

            Defendants.
                                     ORDER
                              Filed December 4, 2000


Before TACHA , EBEL , and LUCERO , Circuit Judges.



      This matter is before the court on appellees’ petition for rehearing of this

court’s order and judgment filed October 30, 2000. The members of the hearing

panel have considered appellees’ arguments regarding the merits of this court’s

disposition of this appeal, and conclude that the original disposition was correct.

Therefore, the petition for rehearing is denied on the merits.

      The hearing panel, however, issues a revised order and judgment which

modifies certain language of the filed order and judgment. The primary change

is that the quotation from Appellant’s Appendix at 96 has been changed to a

quotation from Appellant’s Appendix at 47.     See slip op. at 8. A copy of the

corrected order and judgment is attached.

                                                    Entered for the Court,
                                                    Patrick Fisher, Clerk of Court


                                                    By:
                                                           Keith Nelson
                                                           Deputy Court




                                         -2-
                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                              OCT 30 2000
                          FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                    Clerk

DAVE SHELDON,

            Plaintiff-Appellant,

v.                                        Nos. 99-3202 & 99-3389
                                        (D.C. No. 98-CV-2277-JWL)
JAY VERMONTY; CARMEN                             (D. Kan.)
VERMONTY; POWER PHONE, INC.,
including all Directors and Officers;
NOAH STEINBERG; GERSHON
TANNENBAUM; ENRIQUE R.
CARRION, Dr.; TMC AGROWORLD,
INC., including all Directors and
Officers; MONTE CRISTI GROUP,
including all Directors and Officers;
MANHATTAN TRANSFER
REGISTRAR COMPANY, including
all Directors and Officers; HECTOR
CRUZ; JACK SAVAGE, individually
and as Director and Officer and all
Directors and Officers individually,
aka J. Wesley Savage; PRINCETON
RESEARCH,

            Defendants-Appellees,

      and

CHARLES SCHWAB & CO., INC.;
OLDE DISCOUNT CORPORATION;
PRINCIPAL FINANCIAL,

            Defendants.
                          ORDER AND JUDGMENT            *




Before TACHA , EBEL , and LUCERO , Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ requests for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.


                                   No. 99-3202

      Plaintiff-appellant Dave Sheldon filed this action asserting that various

defendants violated provisions of the Securities Act of 1933, the Securities

Exchange Act of 1934, and the Kansas Securities Act in the course of selling

shares of Power Phone, Inc., both before and after its failed merger with TMC

Agroworld, Inc. Sheldon also alleged liability under common-law theories of

fraud, breach of fiduciary duty, civil conspiracy, unjust enrichment, and negligent

misrepresentation. For several reasons, the district court ruled that Sheldon’s

complaint failed to state an adequate federal-question or diversity claim upon



*
      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.

                                        -2-
which relief could be granted. Accordingly, it granted the motion to dismiss filed

by defendants Jay Vermonty, Carmen Vermonty, Gershon Tannenbaum, and

Hector Cruz. Later, the court denied Sheldon’s request for reconsideration and

motion to amend his complaint pursuant to Fed. R. Civ. P. 15(a). It then directed

entry of judgment in accordance with Fed. R. Civ. P. 54(b). Sheldon now appeals

pursuant to 28 U.S.C. § 1291. We affirm in part, and reverse and remand in part.


                                 BACKGROUND         1



      Sheldon’s securities claims arise from his serial purchases of stock in

Power Phone, Inc. from July 1, 1996 through April 21, 1997. Sheldon alleges that

he invested in reliance on false information disseminated primarily by defendant

Jay Vermonty, Power Phone’s investor relations representative, through press

releases, asset statements, internet messages, and individual contacts with

investors. Sheldon also alleges that several other defendants were involved in the



1
       Sheldon filed three complaints: essentially all of the claims in the first
complaint were dismissed, with leave to amend, for failure to comply with the
pleading requirements of Rules 8 and 9(b) of the Federal Rules of Civil
Procedure. The Second Amended Complaint added additional defendants. The
Third Amended Complaint is the subject of this appeal and is referred to in this
order and judgment as “the Complaint.” In making sense of the jumbled factual
allegations in that filing, we have the advantage of the district court’s distillation
of Sheldon’s claims. The district court performed a yeoman’s task in determining
the gist of the case, rather than simply describing the Complaint as
incomprehensible and dismissing it under Rule 8(a).     See Carpenter v. Williams ,
86 F.3d 1015, 1016 (10th Cir. 1996).

                                         -3-
misrepresentations. Carrion, Reyes, and Tannenbaum, who were officers of

Power Phone, allegedly corroborated Vermonty’s statements so that they, like

Vermonty, would benefit through stock transactions. Carmen Vermonty, Jay

Vermonty’s wife, was supposedly an investor-relations representative for Power

Phone. Jack Savage allegedly drafted and distributed false Princeton Research

reports in return for payment. Although the Complaint alleges that defendant

Hector Cruz served as the transfer agent for Power Phone shares, it does not

connect him with any statements made on behalf of Power Phone.

      The alleged misrepresentations were that: (1) Power Phone was to merge

with TMC Agroworld, Inc., a company with $50-$75 million in documented

assets, no liabilities, and an internationally-known expert in free trade zones,

defendant Carrion, at its head; (2) Power Phone had acquired the Monte Cristi

Lumber Company (with $19-$20 million in assets and $200 million in sales);     2
                                                                                   (3)

the Power Phone/TMC merger was completed, resulting in the addition of $74.3

million in assets; (4) Power Phone owned the Santa Elena meat-packing plant in

Argentina, with assets of $74 million and sales over $100 million, and would be

opening it in a matter of months; (5) Power Phone had a consummated contract to

deliver two million metric tons of urea from Argentina; and (6) generally Power



2
      We note that Sheldon’s filings spell “Monte Cristi” in several different
ways. In this Order and Judgment we use the “Monte Cristi” spelling.

                                         -4-
Phone had appreciable revenues, assets, and confirmed contractual arrangements.

The Complaint provides specific time frames for each of the alleged

misstatements.

      According to the Complaint, Sheldon eventually learned that none of the

statements circulated about Power Phone was true. Specifically, he alleges that

the company did not own the Santa Elena meat-packing plant, a facility which

“had been closed for years and [] would require millions of dollars to take it over

from Argentina’s government, and, no one had been hired to work there.”

Appellant’s App. at 31. The Complaint further alleges that the “Monte Cristi

Lumber [Company] did not exist.”    Id. at 33. In addition, Sheldon asserts that

Power Phone was not properly registered under the federal and Kansas securities

laws and that its sole Securities Exchange Commission filing is “full of false

information.” Id. at 38.

      The stock price allegedly declined from $3.50 per share in July 1996 to

$.87 in December 1996, and to $.05 at the time the Complaint was filed. Sheldon

asserts that he suffered an investment loss of $38,722.89.


                                   DISCUSSION

      This court reviews de novo a district court’s decision to dismiss a

complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon

which relief may be granted or pursuant to Fed. R. Civ. P. 9(b) for failure to plead

                                         -5-
fraud with particularity.      See Grossman v. Novell, Inc.,   120 F.3d 1112, 1118 &

n.5 (10th Cir. 1997). “We accept as true all well-pleaded facts, as distinguished

from conclusory allegations, and view those facts in the light most favorable to

the nonmoving party.”         Maher v. Durango Metals, Inc. , 144 F.3d.1302, 1304

(10th Cir. 1998). The dismissal will be upheld only if “‘it appears beyond doubt

that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief.’”     Id. (quoting Conley v. Gibson , 355 U.S. 41, 45-46 (1957)).

       As a preliminary matter, we note that the Complaint is bereft of

legally-significant allegations as to defendant Cruz. Without any further

discussion, we affirm the district court’s dismissal of all claims against Mr. Cruz.

The remainder of our analysis applies to defendants Jay Vermonty, Carmen

Vermonty, and Tannenbaum.


                           Claims under the Securities Act of 1933

       Count one of the Complaint asserts violations of § 12 of the Securities Act

of 1933 (the Securities Act), codified at 15 U.S.C. § 77l(a)(1) and (a)(2). The

Securities Act primarily regulates one corporate event: the initial distribution of

securities. See Gustafson v. Alloyd Co. , 513 U.S. 561, 570-72 (1995). The Act

requires issuing companies to make a number of company and transaction-specific

disclosures and to deliver this information to potential investors.      See id. In this



                                              -6-
case, Sheldon alleges that the event requiring compliance with the Securities Act

was the merger between Power Phone and TMC Agroworld.

       Section 12(2) provides, in pertinent part, that any person who offers or sells

a security by use of the mails or interstate facilities by means of a prospectus or

oral communication which includes any untrue statement or omission of a

material fact is liable for damages to the immediate purchaser of the security.        3



The Supreme Court has “indicated in dicta that only purchasers in the initial

public offering could bring suit pursuant to section 12(2).”       Joseph v. Wiles ,

223 F.3d 1155, 1160-61 (10th Cir. 2000) (citing       Gustafson , 513 U.S. at 571-72)).

The district court dismissed Sheldon’s § 12(2) claim for failure to plead sufficient

facts to support an inference that the Power Phone/TMC merger was required to

be registered pursuant to § 5 of the Act, 15 U.S.C. § 77e, or that the sale of stock

subsequent to the merger amounted to an initial public offering. In his

Complaint, Sheldon alleged that the defendants “failed to make a proper ‘33 Act



3
       As this court has stated,

       Section 12 claims are commonly referred to as either § 12(1) or
       § 12(2) claims. In 1995, however, Congress added another subsection
       to § 12. See Private Securities Litigation Reform Act of 1995,
       Pub. L. No. 104-67, § 105, 109 Stat. 737, 757 (codified at 15 U.S.C.
       § 77l ). Therefore, § 12(1) and § 12(2) claims are now technically
       § 12(a)(1) and §12(a)(2) claims.

Maher v. Durango Metals, Inc.      , 144 F.3d 1302, 1303 n. 1 (10th Cir. 1998).

                                            -7-
registration for the initial public offering of the ‘merger’ between TMC and the

‘Shell’ of [Power Phone] as required for this specific situation (Merger; Shell)

when no legitimate exemption applied. . . .” Appellant’s App. at       47.

       These allegations bear some similarity to the factual circumstances of    SEC

v. Datronics Engineers, Inc. , 490 F.2d 250 (4th Cir. 1973), in which the

defendant, a public corporation, acquired a number of privately-held, target

companies in merger transactions. A subsidiary of the defendant would merge

with the target company, with the target company disappearing and the subsidiary

surviving the merger. Both the shareholder-principals of the disappearing target

and Datronics received stock in the surviving subsidiary. After the merger,

Datronics distributed some of its shares to its shareholders as a dividend. In this

way, formerly privately-held companies became publicly owned without going

through a registered public offering.     See id. at 253-54. The court was concerned

that, contrary to the purposes of the Securities Act, a public trading market would

develop in the securities of these newly-public companies for which no public

information was yet available.     See id. The court therefore held that Datronics’

activities violated the Securities Act.    See id. at 254.

       We make no determination as to whether the       Datronics rationale is

applicable here or whether the merger actually resulted in an initial public

offering of stock. We note, however, that a “court should be especially reluctant


                                            -8-
to dismiss on the basis of the pleadings when the asserted theory of liability is

novel or extreme, since it is important that new legal theories be explored and

assayed in the light of actual facts rather than a pleader’s suppositions.” 5A

Charles Alan Wright & Arthur R. Miller,    Federal Practice and Procedure   § 1357,

at 341-43 (2d ed. 1990). We conclude that plaintiff’s § 12(a)(2) allegations

concerning the merger between Power Phone (a public company alleged to be

a shell having little or no assets) and TMC Agroworld are sufficient to survive

defendants’ motion to dismiss. Accordingly, the district court’s dismissal of the

claim was premature.

      Sheldon also makes a claim under § 12(1) of the Securities Act, 15 U.S.C.

§ 77l(a)(1), which provides a right of action for the immediate purchaser to

rescind the sale and demand a return of the purchase price against an individual

who offered or sold unregistered securities required to be registered. The

purchaser must bring the action “within one year after the violation upon which it

is based” and, in no event, “more than three years after the security was bona fide

offered to the public.” 15 U.S.C. § 77m.

      Here, the district court dismissed the § 12(1) claim as time-barred. The

court determined that Sheldon’s last purchase of stock occurred in April of 1997,

but that this action not filed until June 1998, more than one year later. On the

facts of this case, we agree with the district court’s ruling. A § 12(a)(1) claim


                                          -9-
“contemplates a buyer-seller relationship not unlike traditional contractual

privity.” Pinter v. Dahl , 486 U.S. 622, 642 (1988). The allegations of

misrepresentations made within the required one-year time frame, but which did

not result in a sale, are irrelevant here. Accordingly, the § 12(1) claim was

properly dismissed.


                 Claims under the Securities Exchange Act of 1934

       Count V of Sheldon’s Complaint alleges violations of the Securities

Exchange Act of 1934 (the Exchange Act). To state a claim under § 10(b) of the

Exchange Act, codified at 15 U.S.C. § 78j(b), “a plaintiff must establish that, in

connection with the purchase or sale of a security, the defendant, with scienter,

made a false representation of a material fact upon which the plaintiff justifiably

relied to his or her detriment.   Wiles , 223 F.3d at 1161 (quotations and citations

omitted).

       In this case, the district court dismissed Sheldon’s claim for failure to plead

the fraud element of a § 10(b) claim with particularity, pursuant to Rule 9(b) of

the Federal Rules of Civil Procedure. Specifically, the district court found the

complaint wanting in allegations as to “how or why the alleged misrepresentations

were false,” Appellant’s App. at 259; whether the “allegedly false statements

were known to be false when made,”          id. at 260, and “defendants’ intent to

deceive, or ‘scienter.’”   id. at 262-63.

                                             -10-
       In reviewing a dismissal under Rule 9(b), we confine our analysis to the

text of the complaint.   See Koch v. Koch Indus., Inc. , 203 F.3d 1202, 1236

(10th Cir.), cert denied , 68 U.S.L.W. 3023 (U.S. Oct. 10, 2000) (No. 00-28) and

cert. denied , 69 U.S.L.W. 3128 (U.S. Oct. 10, 2000) (No. 00-175).   4



       Rule 9(b) provides, “[i]n all averments of fraud or mistake, the
       circumstances constituting fraud or mistake shall be stated with
       particularity. . . .” More specifically, this court requires a complaint
       alleging fraud to set forth the time, place and contents of the false
       representation, the identity of the party making the false statements
       and the consequences thereof. Rule 9(b)’s purpose is to afford
       defendant fair notice of plaintiff’s claims and the factual ground
       upon which [they] are based. . . .”

Id. (further quotations and citations omitted). Rule 9(b) further provides that

“malice, intent, knowledge, and other conditions of mind of a person may be

averred generally.”

       After a review of the complaint, we conclude that it adequately met

Rule 9(b) requirements. First, as the district court acknowledged, the Complaint

alleged misrepresentations with background information as to date, speaker, and

the medium of communication.      See Appellant’s App. at 259. Second, certain of

the alleged misrepresentations involved profitable expectations arising from an


4
       Accordingly, we disregard the content of papers that Sheldon filed with the
court subsequent to his filing of the Third Amended Complaint. We note,
however, that the documents denominated Exhibit 1-A through Exhibit 6-D,
which were filed with the initial Complaint and referenced in the Third Amended
Complaint as Exhibits 1- through 6, are appropriately included in the record on
appeal.

                                          -11-
unowned and inoperable meat-packing plant, a nonexistent lumber company, and

fabricated contracts. Accepting Sheldon’s allegations as true, these are patently

false statements of present fact. The district court erred in determining they were

“‘mere conclusory allegations of falsity’” and in characterizing them as “‘fraud by

hindsight.’” Appellant’s App. at 259 (quoting     Grossman , 120 F.3d at 1124).

Third, the allegations of scienter were sufficient. In securities fraud cases,

although speculation and conclusory allegations will not suffice, great specificity

is not required if the plaintiff alleges enough facts to support “a strong inference

of fraudulent intent.”   Stevelman v. Alias Research Inc.   , 174 F.3d 79, 84 (2d Cir.

1999).

         At this procedural juncture, the allegations of fraud need no further

explanation. Although Sheldon’s complaint could have been more artfully

crafted, he should be permitted to pursue his § 10(b) claim. The district court’s

dismissal of the claim was inappropriate.

         Sheldon also alleges violations of § 12 and § 13 of the Exchange Act.

See 15 U.S.C. § 78l (setting out registration requirements for securities); § 78m

(setting out, among other things, subsequent reporting requirements). The

Complaint does not provide sufficient allegations to demonstrate which of these

provisions, if any, apply to any of the defendants. Furthermore, on appeal,

Sheldon makes no comprehensible argument supporting his theory that he is


                                           -12-
entitled to pursue a private right of action under these provisions.      See generally ,

Lora C. Siegler, Availability of Implied Private Action for Violation of § 13 of

Securities Exchange Act of 1934      , 110 A.L.R. Fed. 758 (1992). The district court

properly dismissed this claim, as alleged in count II of the Complaint.      5




                         Controlling Person Liability Claims

       In counts III and IV of the Complaint, Sheldon claims violations of § 15 of

the Securities Act, 15 U.S.C. § 77o, and § 20(a) of the Exchange Act, 15 U.S.C.

§ 78t. Under both these provisions, “a person who controls a party that commits

a violation of the securities laws may be held jointly and severally liable with the

primary violator.”     Maher , 144 F.3d at 1304-05. “[T]o state a prima facie case of

control person liability, the plaintiff must establish (1) a primary violation of the

securities laws and (2) ‘control’ over the primary violator by the alleged

controlling person.”     Id. at 1305.

       The district court summarily dismissed Sheldon’s control person claims for

failure to state a primary violation. As discussed above, we have concluded that

certain of his claims of primary securities violations should have survived

defendants’ motion to dismiss. On remand, the district court should allow the

concomitant control person claims to proceed.


5
      To the extent Sheldon seeks to make claims under any other provisions of
the Exchange Act, these claims are inadequately pled and properly dismissed.

                                            -13-
                                      Diversity Claims

       Sheldon has asserted numerous diversity claims. The district court

dismissed his claims under the Kansas Securities Act, along with claims of

common law fraud and common law conspiracy with prejudice, essentially for

failure to plead fraud with particularity. The court dismissed state-law claims of

unjust enrichment and negligent misrepresentation without prejudice. For the

same reasons that we determine Sheldon’s federal-law fraud claims were

improperly dismissed, we reverse the district court’s dismissal of these state-law

claims. We agree with the district court, however, that Sheldon failed to allege

any facts from which a fiduciary duty could be discerned.          See Denison State

Bank v. Madeira , 640 P.2d 1235, 1241 (Kan. 1982) (stating existence of fiduciary

relationship depends upon whether “there has been a special confidence reposed

in one who, in equity and good conscience, is bound to act in good faith and with

due regard to the interests of the one reposing the confidence”). Dismissal of the

breach of fiduciary duty claim was appropriate.


                   Denial of Leave to File an Amended Complaint

       Finally, Sheldon asserts that the district court erred in dismissing his

complaint without affording him leave to amend. Whether to allow amendment of

a complaint is a matter left to the district court’s discretion.    See Trotter v


                                              -14-
Regents of the Univ. of N.M. , 219 F.3d 1179, 1185 (10th Cir. 2000). In light of

the poor quality of Sheldon’s pleadings, the district court did not abuse its

discretion in denying a request to amend. Because we are remanding certain

claims to the district court for further proceedings, however, the issue of

amendment as to these claims is best left to the district court’s discretion

on remand.


                                  CONCLUSION

      In sum, we reverse the dismissal of the following claims against defendants

Jay Vermonty, Carmen Vermonty, and Gershon Tannenbaum: § 12(2) Security

Act claims; § 10(b) Exchange Act claims; controlling person liability claims

under the Securities Act and the Exchange Act; Kansas Securities Act claims; and

common-law fraud, conspiracy, and unjust enrichment claims. These claims are

remanded for further proceedings consistent with this order and judgment. The

dismissal of Sheldon’s remaining claims is affirmed, including the dismissal of all

claims against defendant Hector Cruz.

      We regret the significant expenditure of judicial resources caused by the

poor quality of Sheldon’s advocacy. Although we have determined that some

of Sheldon’s claims are adequate to survive defendants’ motion to dismiss,

we caution Sheldon that, in the absence of significant improvement in the quality

of his filings, his entire case may be vulnerable to a subsequent legal challenge.

                                         -15-
                                   No. 99-3389

      The claims made in this case against defendants Power Phone, Inc., Noah

Steinberg, Dr. Enrique R. Carrion, TMC Agroworld, Inc., The Monte Cristi

Group, Manhattan Transfer Registrar Company, Princeton Research, Inc., and

Jack Savage are identical to those discussed above in Case No. 99-3202. The

district court dismissed all claims against these defendants for the same reasons

and in the same manner as they were dismissed against defendants Jay Vermonty,

Carmen Vermonty, Tannenbaum, and Cruz.         See Appellant’s App. at 10.

      We affirm in part, and reverse and remand in part, consistent with our

resolution of case No. 99-3202. Issues concerning sufficiency of service and

other arguments unique to individual defendants may be dealt with on remand.

                                                    Entered for the Court


                                                    David M. Ebel
                                                    Circuit Judge




                                        -16-
