holding that a general partner’s interest was not a security, noting that “the legal interest which he enjoyed does not fall within the scope of the term ‘security’ as intended by Congress”
How later courts described this case
- holding that a general partner’s interest was not a security, noting that “the legal interest which he enjoyed does not fall within the scope of the term ‘security’ as intended by Congress”
- counseling that “where a document is actually and necessarily relied upon in the allegations of a complaint, and its authenticity is conceded, the document may be considered by the court” on a motion to dismiss; otherwise, plaintiffs claims could survive “where the terms of the document on which the claim is based would render the complaint insufficient as a matter of law simply by refusing to attach the document to the complaint”
- applying Pennsylvania law, a partner’s claims for “fraud” and “breach of fiduciary duty” against the partnership were referable to arbitration where the agreement provided that “[a]ny controversy arising hereunder will be determined by arbitration.”
- finding that whether an interest is characterized as an “investment contract” or as a “profit sharing arrangement,” it still must meet the requirements of Howey
Written by the judges who cited it.
The opinion
BECKER, Circuit Judge,
concurring:
I concur in the judgment of the Court, and in all but part III of Judge Garth’s opinion. Moreover, I agree essentially with what Judge Garth has written in part III B. My difference with Judge Garth is that I would ground our decision solely upon the terms of the Elkins & Co. Limited Partnership Agreement, to which Goodwin was a signatory, and would not reach the arguments founded upon the Pennsylvania Uniform Partnership Act. Obviously this approach presupposes the view that the partnership agreement is properly before us in the present posture of the case. Judge Garth and Chief Judge Seitz have doubts on this point, but I believe that the agreement is properly before us and hence would dispose of the case on the narrower grounds of the partnership agreement. I will first address the question whether we may consider the agreement, and then its legal effect.
Where, as here, the allegations of a complaint are based on underlying written documents, and the authenticity of those documents is unchallenged, I believe that a court may properly consider those documents on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), even if the documents are not formally attached to the complaint. 1 A contrary holding would enable plaintiffs to survive a 12(b)(6) motion where the terms of the document on which the claim is based would render the complaint insufficient as a matter of law, simply by refusing to attach the document to the complaint. 2 This is such a case. 3 Accordingly, *114 I would hold that where a document is actually and necessarily relied upon in the allegations of a complaint, and its authenticity is conceded, the document may be considered by the court on a motion under Fed.R.Civ.P. 12(b)(6). 4 This approach would enable the district courts to dispose of claims which, in light of the documents on which they are based, are legally insufficient, without the necessity of allowing the extensive discovery generally required before passing on a motion for summary judgment.
I believe that the terms of the Limited Partnership Agreement dispose of Goodwin’s securities claims as a matter of law, even if his allegations concerning management of Elkins & Co are accepted as true. 5 In order to prove that his interest was a “security” within the meaning of the securities laws, Goodwin had to show that his interest in Elkins falls within the test announced in Securities and Exchange Commission v. W.J. Howey Co., 328 U.S. 293 , 66 S.Ct. 1100 , 90 L.Ed. 1244 (1946), and its progeny. 6 That test basically attempts to separate passive investments from active, participatory interests in businesses. As Judge Garth’s opinion points out, the Elkins agreement provides that general partners may participate in the nomination, election, or removal of the Executive Committee and the Managing Partner, that they retain ultimate control through the function of overseeing the decisions of the executive committee and the managing partner, and that they retain power over new admissions to the partnership and over involuntary terminations. I note that, in addition, the agreement provides that “[ejach partner will devote substantially all of his business time and attention to the business of the partnership” (117(b)), that partners “will not, during the continuance of the Partnership, carry on or be concerned with or interested in ... any other business or venture other than as herein provided” (117(c)), and that partnership interests may not be assigned (11 22).
These factors, taken together, negate the argument that the interest of partners in the firm was basically a passive investment. As I have noted above, in his complaint in this case Goodwin has relied on the terms of the agreement, actually and constructively, and has not alleged that the provisions referred to above were shams. Under these circumstances, the terms of the agreement conclusively determine that the general partnership interest created thereby is not a security. Goodwin’s allegations concerning his non-participation in management therefore fail to state a claim under the securities law, whether or not they are true.
. The courts are divided on the question whether a plaintiff is required to attach a written contract to a complaint based thereon. See 2A J. Moore, Moore's Federal Practice § 8.17[6] at 8-184. In this case the partnership agreement was attached as an exhibit to the Rule 12(b)(6) motion.
. I am buttressed in this holding by the general rule that the interpretation of a written document is a matter of law for purposes of appellate scope of review. See Emor, Inc. v. Cyprus Mines Corp., 467 F.2d 770, 773 (3d Cir.1972). Where the written language of a contract or other document is dispositive of an issue as a matter of law, there is no reason for even the cursory factual discovery and presentation required by Fed.R.Civ.P. 56.
. Because I take this position, I believe that we could dispose of this case on the basis of the agreement even if we had to treat the motion to dismiss as a motion for summary judgment under Fed.R.Civ.P. 56. Since the partnership agreement renders Goodwin’s complaint insufficient as a matter of law, factual proof of the allegations in the complaint would not be ''material” to our disposition of the case. Therefore, there was no harm from the district court’s failure to give Goodwin an opportunity to present factual rebuttal before granting the motion even if we treat it as one for summary judgment on the basis of legal insufficiency. I understand this to be Chief Judge Seitz’s position as well.
. See note 4 of Judge Garth’s opinion.