                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-3952
                                   ___________

Bernard Gerstner, Jr.; Dale Sprague;      *
Ronald Cornelius,                         *
                                          *
              Plaintiffs - Appellants,    *
                                          * Appeal from the United States
       v.                                 * District Court for the
                                          * Western District of Missouri.
Sebig, LLC; Arlo W. Erickson,             *
In his individual capacity only;          * [UNPUBLISHED]
Donald Roberts, In his individual         *
capacity only; B. A. Schawinsky,          *
In his individual capacity only; Pat      *
Stewart, In her individual capacity only, *
                                          *
              Defendants - Appellees.     *
                                     ___________

                             Submitted: June 18, 2010
                                Filed: July 16, 2010
                                 ___________

Before LOKEN, BYE, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

      In this civil action alleging securities violations, Bernard Gerstner, Dale
Sprague, and Ronald Cornelius (collectively, “appellants”) appeal the district court’s
order denying the removal of opposing counsel and dismissing their complaint. We
affirm except as to appellants’ claim for the sale of unregistered securities. We
reverse the dismissal of this claim and remand it to the district court for proceedings
consistent with this opinion.

                                          I.

       Appellants are minority owners of Sebig, LLC (“Sebig”). They filed this action
pro se against Sebig and its majority owners—Arlo W. Erickson, Donald Roberts, B.
A. Schawinsky, and Pat Stewart (collectively, “appellees”). Appellants allege six
counts, consisting of the following: (1) “violation of 15 U.S.C. § 77(e)a: Sale of
unregistered securities and 15 U.S.C. § 78o(a)(1); Acting as an unregistered
broker-dealer”; (2) “civil and criminal acts concerning the misrepresentation, breach
of contract and fraud involving the initial planning, organization, administration and
operation of Sebig,” in violation of 15 U.S.C. §§ 78(b) and 77(a); (3) appellees “used
various fraudulent devices and schemes in the offer and sale of the securities of
Sebig”; (4) appellees “unlawfully used and employed a means or instrumentality of
interstate commerce in connection with the offer and sale of said securities”;
(5) appellees “acted with scienter or knowledge of their deceptive acts”; and
(6) appellees “totally mismanaged and were incompetent in the control, administration
and operation of [Sebig].” (Compl. ¶ ¶ 17-22.)

       Appellees moved to dismiss the complaint, arguing that all of the claims failed
to comply with the notice pleading requirement embodied in Rule 8(a) of the Federal
Rules of Civil Procedure. Appellants then filed a motion requesting that the district
court remove appellees’ counsel based on an alleged conflict of interest. In resolving
appellees’ motion to dismiss the complaint, the court “[l]iberally construed” the
complaint to allege “four counts [of] federal securities violations and one count
alleging that the Individual Defendants mismanaged [Sebig] in violation of state law.”
Gerstner v. Sebig, LLC, No. 09-6088-CV-SJ-ODS, 2009 WL 4728992, at *2 (W.D.
Mo. Dec. 4, 2009) (unpublished). In the district court’s December 4, 2009, order, the
court (1) denied appellants’ motion to remove opposing counsel, concluding that

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appellants had failed to demonstrate a disqualifying conflict of interest on the part of
appellees’ counsel, and (2) granted appellees’ motion to dismiss the complaint.

      Appellants contend that the district court erred in: (1) denying their motion to
remove counsel, (2) refusing to liberally construe their pro se complaint, and (3)
finding that their factual allegations were insufficient.

       First, we conclude that the district court did not abuse its discretion in denying
appellants’ motion to disqualify appellees’ counsel based on a purported conflict of
interest arising from prior representation of appellees’ counsel’s law firm. See United
States v. Poe, 428 F.3d 1119, 1123 n.3 (8th Cir. 2005); see also Macheca Transp. Co.
v. Philadelphia Indem. Ins. Co., 463 F.3d 827, 833 (8th Cir. 2006) (“Because of the
potential for abuse by opposing counsel, disqualification motions should be subjected
to particularly strict scrutiny.” (quotations omitted)). However, in order for prior
representation to warrant disqualification, among other things, “the present litigation
[must] involve[] a matter that is substantially related to the subject of the . . . prior
representation.” United States v. LaVallee, 439 F.3d 670, 681 (10th Cir. 2006)
(quotation omitted) (emphasis added). Appellants do not allege that this case is, in
any way, related to the law firm’s prior representation of any client. Therefore, the
district court did not abuse its discretion in denying appellants’ motion to disqualify.

       We consider appellants’ second and third arguments on appeal together—that
the district court did not construe their pro se complaint liberally, as required, and that
their claims were improperly dismissed as factually insufficient. We review “de novo
the grant of a motion to dismiss, taking all facts alleged in the complaint as true.”
Owen v. Gen. Motors Corp., 533 F.3d 913, 918 (8th Cir. 2008) (quotation omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Under this standard “a complaint need not include detailed factual

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allegations,” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629
(8th Cir. 2010); however, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do[,]” Twombly, 550 U.S. at
555 (quotation omitted).

        “In reviewing the dismissal of a pro se complaint, we hold the district court to
the requirement of liberal construction . . . .” Stone v. Harry, 364 F.3d 912, 914 (8th
Cir. 2004). Specifically, “a pro se complaint must be liberally construed, and ‘pro se
litigants are held to a lesser pleading standard than other parties.’” Whitson v. Stone
County Jail, 602 F.3d 920, 922 n.1 (8th Cir. 2010) (citation omitted) (quoting Fed.
Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008)). However, this standard does
not excuse pro se complaints from “alleg[ing] sufficient facts to support the claims
advanced.” Stone, 364 F.3d at 914; see Frey v. City of Herculaneum, 44 F.3d 667,
672 (8th Cir. 1995) (holding that pro se complaint fell “short of meeting even the
liberal standard for notice pleading” where it was “entirely conclusory” and gave “no
idea what acts the individual defendants were accused of that could result in
liability”).

       Here, the district court expressly acknowledged the pro se pleading standard
and correctly applied it with respect to the balance of appellants’ claims. However,
we agree with appellants that the district court improperly dismissed the first federal
securities claim, alleging that appellees sold unregistered securities in violation of 15
U.S.C. § 77e(a). Section 77e(a), entitled “Sale or delivery after sale of unregistered
securities,” provides:

      Unless a registration statement is in effect as to a security, it shall be
      unlawful for any person, directly or indirectly--

             (1) to make use of any means or instruments of transportation or
             communication in interstate commerce or of the mails to sell such

                                          -4-
             security through the use or medium of any prospectus or
             otherwise; or

             (2) to carry or cause to be carried through the mails or in interstate
             commerce, by any means or instruments of transportation, any
             such security for the purpose of sale or for delivery after sale.

15 U.S.C. § 77e(a); see 15 U.S.C. § 77o(a)(1) (providing a private cause of action for
violation of § 77e(a)).

       We disagree with the district court’s determination that the appellants did not
sufficiently allege the interstate commerce element of their unregistered securities
claim. As relevant, the complaint provided the following facts:

      The securities offering and sale of [Sebig] was accomplished by
      violations due to public advertising, obtaining investors outside the State
      of Missouri and the offerings were made to a number of persons greatly
      exceeding thirty-five (35). . . . It is common knowledge between the
      parties of this case that an initial offering was made to at least fifty
      potential investors in St. Joseph, Missouri. Also, at least five (5)
      investors reside and are domiciled outside of the State of Missouri. In
      addition, public advertising was accomplished on several occasions
      known to the [appellees].

(Compl. ¶¶ 14-15.) Although these allegations are certainly sparse, we conclude, in
light of the pro se nature of the complaint, they are sufficient as they provide “factual
enhancement” beyond mere “labels and conclusions” or “naked assertion[s].” Iqbal,
129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 557) (alteration in original).
Interstate advertising is evidence that a transaction possesses an “interstate
commercial aspect.” Diversified Brokerage Servs., Inc. v. Greater Des Moines Bd.
of Realtors, 521 F.2d 1343, 1346-47 (8th Cir. 1975). Even though the complaint only
alleges that the appellants engaged in public advertising, given that it is a pro se
complaint and in light of the factual allegation that the advertising yielded out-of-state


                                           -5-
investors, we construe the complaint to allege that appellants marketed unregistered
securities through interstate advertising. Because the appellants have plausibly pled
the interstate commerce element of their unregistered securities claim, the district
court erred in dismissing the claim.

        Accordingly, we (1) affirm the district court’s denial of the motion to remove
appellees’ counsel and the dismissal of all claims except the unregistered securities
claim, and (2) reverse the dismissal of the unregistered securities claim and remand
it to the district court for proceedings consistent with this opinion.
                          ______________________________




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