                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                                                       U.S. COURT OF APPEALS
                       ________________________          ELEVENTH CIRCUIT
                                                             January 5, 2007
                                                          THOMAS K. KAHN
                             No. 06-11520                       CLERK
                       ________________________

                   D. C. Docket No. 03-80349-CV-DTKH


STRATEGIC CAPITAL RESOURCES, INC.,
a Delaware Corporation,

                                                           Plaintiff-Appellant,


                                  versus


CITRIN COOPERMAN & COMPANY, LLP,
a New York Limited Liability Partnership,
HORTON & COMPANY, LLC, a New
Jersey Limited Liability Company, and
EDWARD HORTON,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (January 5, 2007)
Before DUBINA and WILSON, Circuit Judges, and CORRIGAN,* District Judge.

PER CURIAM:

       In this case, plaintiff-appellant Strategic Capital Resources, Inc. filed suit in

the Southern District of Florida, invoking the court’s diversity jurisdiction,

bringing claims of negligence and breach of fiduciary duty against its independent

auditor. Defendants in the suit were Citrin Cooperman & Company, LLP; Horton

& Company, LLC; and Edward Horton. Before trial, the District Court excluded

Strategic’s claims pertaining to an earlier time period because they were not

sufficiently pleaded. Also, the District Court entered summary judgment for

defendants on Strategic’s breach of fiduciary duty claims, holding that an

independent auditor does not owe a fiduciary duty to the company it is auditing.

Finally, following a bench trial, the District Court held that Strategic failed to

establish by a preponderance of the evidence that defendants were negligent with

regard to the preparation of an independent audit and their resignation before the

audit was complete. Strategic appeals, raising three issues.




       * Honorable Timothy J. Corrigan, United States District Judge for the Middle District of
Florida, sitting by designation.

                                               2
                                                  I.

           The District Court precluded Strategic from pursuing claims that Horton

and Horton & Company breached their fiduciary duty and were negligent for

conduct prior to the time frame of the disputed independent audit, holding that

“Strategic’s amended complaint failed to plead even a single fact or claim that

adequately placed the defendants on notice that Strategic intended to proceed

against the defendants for claims related to Mr. Horton’s prior duties as Strategic’s

accountant.” Treating the District Court’s decision as a denial of leave to amend

the pleadings, we find that the District Court did not abuse its discretion. Lowe’s

Home Centers, Inc. v. Olin Corp., 313 F.3d 1307, 1314-15 (11th Cir. 2002); CNA

Financial Corp. v. Brown, 162 F.3d 1334, 1337 n.4 (11th Cir. 1998).

                                                 II.

       We review the District Court’s entry of summary judgment in favor of

defendants on Strategic’s breach of fiduciary claims de novo, and we affirm.

       Though not addressing squarely whether an independent auditor has a

fiduciary duty to a client, the Florida Supreme Court1 has stated that an

independent auditor does not have a confidential relationship with the client with



       1
                A federal court sitting in diversity applies the substantive law of the state in which
it sits. Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1444 (11th Cir. 1991).

                                                  3
an undivided duty of loyalty, but rather assumes a public responsibility, owing

ultimate allegiance to the client’s creditors, stockholders and the investing public,

which requires the auditor to remain totally independent from the client. KPMG

Peat Marwick v. National Union Fire Ins. Co. of Pittsburgh, 765 So.2d 36, 38

(Fla. 2000)(citing United States v. Arthur Young & Co., 465 U.S. 805, 817-18

(1984)). See generally Motorcity of Jacksonville, Ltd. v. Southeast Bank N.A., 83

F.3d 1317, 1340 (11th Cir. 1996)(“the mere act of auditing the dealership and

sending the summary audit reports does not . . . give rise to a fiduciary duty under

Florida law”), vacated on other grounds sub nom. Hess v. F.D.I.C., 519 U.S. 1087

(1997); cf. TSG Water Resources, Inc. v. D’Alba & Donovan Certified Public

Accountants, P.C., 366 F. Supp.2d 1212, 1227 (S.D. Ga. 2004)(“[g]enerally, an

accountant hired to audit the financial statements of a client is not a fiduciary of

the client, but rather is required to be independent of the client”).

      Even assuming that there may be extraordinary circumstances in which a

fiduciary relationship between an independent auditor and a client may arise, we

determine that based on the facts of this case, no such extraordinary circumstances

exist here.

                                          III.

      Finally, the District Court’s findings of fact and determination on the

                                           4
ultimate question of negligence were not clearly erroneous. Superior Constr. Co.

v. Brock, 445 F.3d 1334, 1339 (11th Cir. 2006); Holton v. City of Thomasville

School Dist., 425 F.3d 1325, 1350-51 (11th Cir. 2005); American Dredging Co. v.

Lambert, 153 F.3d 1292, 1295 (11th Cir. 1998).

      AFFIRMED.




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