ON PETITIONS FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion December 11, 1980, 5 Cir., 632 F.2d 579).
RANDALL, Circuit Judge:
IT IS ORDERED that the petition for rehearing filed by the plaintiffs-appellants in the above entitled and numbered cause is hereby DENIED and, no member of this panel or judge in regular active service on the court having requested that the court be polled on rehearing en banc (Federal Rule of Appellate Procedure 35; Local Fifth Circuit Rule 16), the petition for rehearing en banc filed by the plaintiffs-appellants is DENIED. The petitions for rehearing filed by the defendants-appellees are hereby GRANTED IN PART; our original opinion, reported at 632 F.2d 579 (5th Cir. 1980), is withdrawn and the following opinion is substituted in its place. In all other respects, the petitions for rehearing filed by the defendants-appellees are hereby DENIED.
This case involves the application of the Securities Act of 1933 (the 1933 Act) and the Securities Exchange Act of 1934 (the 1934 Act) to a series of transactions in which undivided interests in a parcel of undeveloped real estate were transferred to several joint ventures created for the purpose of holding the interests for a small number of purchasers, in exchange for promissory notes from the purchasers to the original owners of the property. This suit was brought by four of the purchasers,
I. THE FACTS
From 1960 to 1969, Gordon G. Tucker, Fred E. Tucker, Jr. and Marvin M. Blakeney, Jr. each owned an undivided one-third interest in a 160 acre tract of land located between Dallas and Fort Worth (the Property). Gordon Tucker and Fred Tucker are brothers; Blakeney, now deceased and not a party to this suit, was married to their sister. After the location of the Dallas-Fort Worth airport was announced, each of the Tucker brothers and Blakeney, in a separate transaction, sold his undivided interest in the Property. The first sale occurred in November, 1969, when Blakeney sold his undivided one-third interest to Kenneth M. Good and Associates, Trustee (Good & Associates).
The second sale (and the first transaction directly involved in this suit) occurred in May, 1970, when Fred Tucker sold his undivided one-third interest to a group composed of M. L. Godwin, L. R. Polan, Jr. and James F. Mason, all of whom are employees of M. L. Godwin Investments, Inc. (Godwin Investments). Although the contract of sale required the group to execute a promissory note in the principal sum of $1,000,000 to Fred Tucker, it permitted the group thereafter to form a joint venture, and if such was accomplished, to substitute a new note executed by all the joint venturers in lieu of, and in rearrangement of, the first note. In July, 1970, the Grapevine-Regional Airport No. 1 Joint Venture (Reg Air I) was executed by John D. Williamson (one of the four plaintiffs in this action) and fifteen other investors (none of whom is a party to this action) for the purpose of purchasing the interest that Godwin, Polan and Mason had purchased from Fred Tucker. In December, 1970, this interest was conveyed to Reg Air I, and a promissory note in the principal amount of $1,000,000 was executed and delivered by Williamson and the other joint venturers to Fred Tucker in renewal and extension of the original note. Williamson purchased a 20% interest in the venture.
In December, 1970, Gordon Tucker (still the owner of a one-third undivided interest in the Property) and Good & Associates (which had purchased Blakeney's one-third interest in the Property) each sold a one-sixth undivided interest in the Property (a total one-third undivided interest) to Grapevine-Regional Airport No. 2 Joint Venture (Reg Air II), a joint venture formed for the purpose of acquiring that interest. In consideration of the transfer, the joint venturers executed and delivered long-term promissory notes to Gordon Tucker and Good & Associates in the aggregate principal amount of $1,332,333. Williamson purchased a 20% interest in Reg Air II; Harold R. Lilley purchased a 10% interest; Joseph C. Wilson and George Blake each purchased a 5% interest. Lilley, Wilson and Blake are the other three plaintiffs in this action.
In June, 1971, Gordon Tucker and Good & Associates again each sold a one-sixth undivided interest in the Property. This time the purchaser was Grapevine-Regional Airport No. 4 Joint Venture (Reg Air IV), and the purchase price was paid by the execution and delivery to Gordon Tucker and Good & Associates by the joint venturers of long-term promissory notes totalling $1,500,000 in principal amount. Williamson again purchased a 20% interest; Lilley purchased a 10% interest.
These materials emphasized the strategic location of the Property and included an analysis of real estate values in the areas surrounding the Los Angeles, San Francisco and Atlanta airports. The analysis stated, for example:
It was expected that the Property would be held by the joint venturers for a period of substantial appreciation in real estate values, after which it would be either be sold by the venturers or developed by them. Godwin Investments represented that it would ultimately pursue the sale or development of the Property and in the interim would perform all management duties, including efforts to have the land rezoned from single-family residential to its best uses. As the materials emphasized:
Despite the representations of Godwin Investment's management duties and capabilities, the participants in each joint venture retained substantial control of the venture in the agreement which they signed. Each joint venture agreement requires unanimous consent of the venturers to confess a judgment; to make, execute or deliver any bond, mortgage, deed of trust, guarantee, indemnity bond, surety bond or accommodation paper or accommodation endorsement; to borrow money in the name of the joint venture or use joint venture property as collateral; and to amend the agreement to
The extent to which the joint venturers actually exercised these powers is not clear. All of the plaintiffs herein represent that they relied entirely on Godwin Investments and made no attempt to oversee or participate in the management of the Property, at least until late 1975. It appears that several other venturers defaulted in their payments in 1975, and that two other venturers (who are not plaintiffs herein) threatened suit against some of the defendants herein in 1976, at which time the plaintiffs represent they first became aware of alleged securities violations. The record shows that-apparently because of these events-all of the plaintiffs participated in joint venture meetings (although the number of meetings and the nature of the participation is unclear) after late 1975.
In 1976, the plaintiffs defaulted in their payments under the notes they had executed. In June 1977, the trustees under the deeds of trust securing the payment of the plaintiffs' notes to Fred Tucker, Gordon Tucker and the Trustees of the Home Interiors and Gifts Profit Sharing Trust (who purchased the notes executed by the venturers in Reg Air II and Reg Air IV payable to Good & Associates) foreclosed and sold the plaintiffs' undivided interests in the Property. The sale proceeds did not fully cover the plaintiffs' obligations.
II. THE PROCEDURAL POSTURE OF THIS CASE
On June 29, 1976, the plaintiffs-Williamson, Lilley, Wilson and Blake-filed suit in the United States District Court for the Northern District of Texas, seeking to rescind the joint venture agreements they had signed and cancel the notes they had executed, and to recover the amounts they had already paid on the notes, plus interest and attorneys' fees. The complaint, as amended, asserts claims based upon the 1933 Act, the 1934 Act, the Texas Securities Act and common law omissions and misrepresentations against Godwin Investments (the manager of the Property), Fred Tucker, Gordon Tucker and Good & Associates (the original owners of the Property), and persons who in the past or now own notes executed and delivered by the plaintiffs in payment for the Property. Counterclaims were filed by the present holders of the notes to collect deficiencies allegedly owed by the plaintiffs following foreclosure sales of the plaintiffs' undivided interests in the Property.
In March and April, 1978, each of the defendants filed a motion for summary judgment, Fed.R.Civ.P. 56, or a motion to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). The plaintiffs based their claim-and consequently federal jurisdiction-on the inclusion of both the joint venture interests they purchased and the notes they executed within the definition of "security" in section 2(1) of the 1933 Act, 15 U.S.C. § 77b(1) (1976), and section 3(a)(10) of the 1934 Act, 15 U.S.C. § 78c(a)(10). After extensive discovery, all parties filed briefs and the court heard oral argument on the motions. On December 19, 1978, the district court dismissed this entire suit. The judgment of the court was as follows:
To say the least, this letter from the district judge is a short and ambiguous statement of the basis of his decision. The brevity of his explanation is all the more striking in the face of the complexity of the facts and issues necessarily involved in the decision; this case comes to us with over 3,000 pages of record in fourteen volumes, more than fifty volumes of depositions, and briefs from six separate parties.
In failing to state findings of fact and conclusions of law, the district court presumably relied on the final sentence of Fed.R.Civ.P. 42(a), which states that such findings are unnecessary "on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b)."
In this case it is not clear what action the district court took or whether it based its decision on a resolution of disputed factual issues. Several important statements are missing from the district court's order and letter of explanation. First, the order is not explicitly entered under either Rule 12(b)(1) or Rule 56, the two separate motions before the court. Second, it is not entirely clear whether the court based its decision on the face of the plaintiffs' complaint or instead relied on facts presented in the record, and if the latter, whether it relied only on undisputed facts or in addition made certain factual determinations. The judge's letter does state that he "reviewed the record;" but to the extent that this means that the court relied on facts not stated in the complaint, it is not clear whether the court based its decision purely on undisputed facts or instead made some factual determination on the basis of conflicting depositions, affidavits and documents. And third, the district court did not state the standard by which it decided the motions before it. All of this makes our task a good deal more difficult. Before reaching the validity of the district court's judgment, we must first determine (1) the action which it took (that is, precisely which motion it granted); (2) the factual basis of the decision; and (3) the standard which is appropriate to the action taken.
The Action Taken by the District Court
A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and a motion for summary judgment under Rule 56 were both properly before the district court. Although Rule 56 requires that a motion for summary judgment be filed at least ten days before a hearing on it and that the opposing party have the opportunity to present affidavits in opposition, it appears that these requisites were met; the Rule 56 motions were filed months before the hearing and were met with extensive discovery and affidavits from a number of parties. Moreover, the record in the case and the arguments made to the court could conceivably have formed the basis of either motion; the applicability of the 1933 Act and the 1934 Act to the transactions at issue is the basis of both federal jurisdiction and the merits of the plaintiffs' cause of action.
It is arguable-on the basis of the record in this case and the arguments made to the district court-that the trial judge intended to enter an order for summary judgment, and we note that we are not bound by the label the district court puts on its action where underlying facts indicate that a different action was in fact intended. Tuley v. Heyd, 482 F.2d 590 (5th Cir. 1973). Nevertheless we believe that the order in this case must be considered as the granting of a motion to dismiss for lack of subject matter jurisdiction, Rule 12(b)(1). The order of the district court states that the action is "dismissed for want of subject matter jurisdiction" and dismisses all counter-claims and cross-actions "without prejudice for want of jurisdiction." The letter from the district judge concludes that he is "of the opinion that I have no jurisdiction in this case and that it must be dismissed." On this basis it seems clear that the judge did not intend to rule on the merits of the plaintiffs' claims. Given the judge's consistent reference to the lack of subject matter jurisdiction, a stronger showing of a different intent would have to be shown before we could recharacterize the action of the district court.
The Factual Basis of the District Court's Decision
A motion to dismiss for lack of subject matter jurisdiction, Rule 12(b)(1), can be based on the lack of jurisdiction on the face of the complaint. If so, the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised-the court must consider the allegations in the plaintiff's complaint as true. E.g., Spector v. L Q Motor Inns, Inc., 517 F.2d 278, 281 (5th Cir. 1975); Herpich v. Wallace, 430 F.2d 792, 802 (5th Cir. 1970). But the two motions are treated quite differently when matter outside the complaint is the basis of the attack. Rule 12(b) provides that a motion to dismiss for failure to state a claim will be automatically converted into a motion for summary judgment (Rule 56) if the court considers matters outside the pleadings.
Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3rd Cir. 1977). The distinction between factual Rule 12(b)(1) motions and factual Rule 12(b)(6) motions is rooted in the unique nature of the jurisdictional question. It is elementary that a district court has broader power to decide its own right to hear the case than it has when the merits of the case are reached. Jurisdictional issues are for the court-not a jury-to decide, whether they hinge on legal or factual determinations. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350 (1969). The unique power of district courts to make factual findings which are decisive of jurisdiction is, therefore, not disputed. Land v. Dollar, 330 U.S. 731, 735 n.4, 67 S.Ct. 1009, 1011 n.4, 91 L.Ed. 1209 (1947); Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir. 1980), cert. denied, ___ U.S. ___, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980); Thornhill Publishing Co., Inc. v. General Telephone & Electronics Corp., 594 F.2d 730 (9th Cir. 1979); McLain v. Real Estate Board of New Orleans, Inc., 583 F.2d 1315 (5th Cir. 1978), vacated on other grounds, 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980); Mortensen v. First Federal Savings and Loan Association, supra; Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126 (2d Cir. 1976); State of Alabama ex rel. Baxley v. Woody, 473 F.2d 10 (5th Cir. 1973); Rosemound Sand and Gravel Co. v. Lambert Sand and Gravel Co., 469 F.2d 416 (5th Cir. 1972). This means that the district court is not limited to an inquiry into undisputed facts. It may hear conflicting written and oral evidence and decide for itself the factual issues which determine jurisdiction. Thus, in Menchaca v. Chrysler Credit Corp., supra, we upheld a dismissal for lack of subject matter jurisdiction which was based in part on the district court's determination-on the basis of a written record and the testimony of all parties-of factual issues that were in dispute.
The district court consequently has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.
Which of these is the foundation of the district court's decision is relevant to appellate review in several ways. First, if the court's decision rests on one of the first two of these bases-in which case the court need not decide among conflicting factual positions-our review is limited to determining whether the district court's application of the law is correct and, if the decision is based on undisputed facts, whether those facts are indeed undisputed. But if the court has relied in addition on its own determination of disputed factual issues, we must then review those findings as we would any other district court resolution of factual disputes-we must accept the district court's findings unless they are "clearly erroneous." McLain v. Real Estate Board of New Orleans, Inc., supra at 1322-23; Krashov v. Dinan, 465 F.2d 1298 (3rd Cir. 1972); Walden v. Broce Construction Co., 357 F.2d 242 (10th Cir. 1966); Hill v. Gregory, 241 F.2d 612 (7th Cir. 1957).
Second, if the district court bases its decision on its own resolution of disputed facts it may be required, at the very least, to
Third, the path which the district court takes to its jurisdictional decision can limit its procedural discretion. It is true that the factual determinations decisive of a motion to dismiss for lack of jurisdiction are within the court's power, and that no right to a jury trial exists with regard to such issues. Menchaca v. Chrysler Credit Corp., supra, at 511; Rosemound Sand and Gravel Co. v. Lambert Sand and Gravel Co., supra at 418. But still the district court must give the plaintiff an opportunity for discovery and for a hearing that is appropriate to the nature of the motion to dismiss. Thus, some courts have refused to grant such a motion before a plaintiff has had a chance to discover the facts necessary to establish jurisdiction. Surpitski v. Hughes-Keenan Corp., 362 F.2d 254 (1st Cir. 1966); Collins v. New York Central System, 327 F.2d 880 (D.C. Cir. 1963). Other courts have refused to uphold such a motion where-absent an incurable defect in the complaint-the plaintiff has had no opportunity to be heard on the factual matters underlying jurisdiction. Harmon v. Superior Court of State of California in and for the County of Los Angeles, 307 F.2d 796 (9th Cir. 1962); Topping v. Fry, 147 F.2d 715 (7th Cir. 1945). And, although Fed.R.Civ.P. 43(e) allows factual motions to be heard on the basis of affidavits alone,
Insofar as the defendant's motion to dismiss raises factual issues, the plaintiff should have an opportunity to develop and argue the facts in a manner that is adequate in the context of the disputed issues and evidence.
For all of these reasons it is important-and sometimes crucial-that the district court state the basis (including any factual determinations made) of a decision to dismiss for lack of subject matter jurisdiction. In the absence of such a statement, an appellate court can decide the appeal only with great difficulty and only in two limited circumstances. First, an appellate court may determine for itself, on the basis of the record and any statements made by the district court, what the basis of the district court's decision was and what, if any, implicit factual findings it made. On a record as long and as complicated as the one in this case, such an attempt would be little more than guesswork and we decline to engage in such guesswork. Second, an appellate court may reverse a decision of the district court dismissing a case for lack of subject matter jurisdiction if it finds that the record cannot be construed in any way so as to support such a dismissal.
The Standard by Which This Motion to Dismiss for Lack of Subject Matter Jurisdiction Should be Decided
The Supreme Court has enunciated a strict standard for dismissals for lack of subject matter jurisdiction when the basis of jurisdiction is also an element in the plaintiff's federal cause of action. In Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1945) (implied right of action under the Fourth and Fifth Amendments), the Court explained:
327 U.S. at 682, 66 S.Ct. at 776 (emphasis added). Accord, Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974); Powell v. McCormack, 395 U.S. 486, 512-16, 89 S.Ct. 1944, 1959-61, 23 L.Ed.2d 491 (1969); Baker v. Carr, 369 U.S. 186, 198-204, 82 S.Ct. 691, 699-703, 7 L.Ed.2d 663 (1962). Where the defendant's challenge to the court's jurisdiction is also a challenge to the existence of a federal cause of action, the proper course of action for the district court (assuming that the plaintiff's federal claim is not immaterial and made solely for the purpose of obtaining federal jurisdiction and is not insubstantial and frivolous) is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case.
The question in this case is whether certain joint venture interests and certain promissory notes are "securities" within the meaning of the 1933 Act and the 1934 Act. We have already specifically held that the definition of the term "security" in the context of a suit based on the federal securities laws may reach the merits of the case and thereby limit the court's discretion to dismiss for lack of subject matter jurisdiction. Hilgeman v. National Insurance Co. of America, 547 F.2d 298 (5th Cir. 1977) (whether certain insurance policies were securities); Bell v. Health-Mor, Inc., supra (whether a referral sales agreement is a security). In this case it is clear that the jurisdictional issue reaches the merits of the plaintiffs' case; if the joint venture interests and notes are not securities, there is not only no federal jurisdiction to hear the case but also no federal cause of action on the stated facts.
If this case was properly dismissed for lack of subject matter jurisdiction, it must therefore fall within the exceptions to Bell v. Hood's general prohibition of jurisdictional dismissals which implicate the merits of the plaintiffs' case. That is, the plaintiffs' claim must "clearly appear to be immaterial and made solely for the purpose of obtaining jurisdiction," or must be "wholly insubstantial and frivolous." In the discussion to follow we find (1) that the plaintiffs have a difficult factual burden if they are to establish that the joint venture interests they purchased are securities, and (2) that on the basis of undisputed facts the notes are not securities. We need not decide whether the plaintiffs' assertion that the notes are securities is so immaterial or insubstantial as to allow a dismissal for lack of jurisdiction, for the plaintiffs' assertion that the joint venture interests are securities is clearly not so immaterial or insubstantial. Even assuming that the district court found disputed material facts against the plaintiffs, we cannot say that their argument "has no plausible foundation" or "is clearly foreclosed by a prior Supreme Court decision." If the answer in this case were
III. THE JOINT VENTURE INTERESTS
The plaintiffs argue that their interests in the joint ventures were "investment contracts" and therefore "securities" within the definitions stated in section 2(1) of the 1933 Act, 15 U.S.C. § 77b(1), and in section 3(a)(10) of the 1934 Act, 15 U.S.C. § 78c(a)(10).
In deciding Howey the Court defined an investment contract as follows:
328 U.S. at 298-99, 66 S.Ct. at 1102-1103. As this court has recognized, the test requires three distinct elements: (1) an investment of money; (2) in a common enterprise; and (3) on an expectation of profits to be derived solely from the efforts of individuals other than the investor. Securities
Although the Court used the word "solely" in the Howey decision, it should not be interpreted in the most literal sense. The Supreme Court has repeatedly emphasized that economic reality is to govern over form and that the definitions of the various types of securities should not hinge on exact and literal tests. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Daniel, 439 U.S. 551, 99 S.Ct. 790, 796, 58 L.Ed.2d 808 (1979); United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 848, 95 S.Ct. 2051, 2058, 44 L.Ed.2d 621 (1975); Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967); Howey, supra, 328 U.S. at 298, 66 S.Ct. at 1102.
A broad definition of "solely" was developed in Securities & Exchange Commission v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476 (9th Cir. 1973), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973) (appeal from the granting of a preliminary injunction sought by the S.E.C.). There the Court of Appeals for the Ninth Circuit was faced with a pyramid franchise scheme which depended for its success on the efforts of the promoters (who were to actually sell the product, a series of motivational seminars called "Dare to be Great") but nevertheless required an effort on the part of the investors (who received a commission for new prospects brought to the promoters). Although profits were not strictly to come "solely" from the efforts of the promoters who gave the sales pitch and ran the program, the court held that the scheme was an investment contract:
474 F.2d at 482 (emphasis added).
This court was faced with an identical scheme (in fact, a subsidiary of Glenn W. Turner Enterprises) in Securities and Exchange Commission v. Koskot International, Inc., supra. After considering the historical derivation of the Howey standard and its development in recent years, we adopted the test explicated by the Ninth Circuit in Turner and held the scheme to be an investment contract. 497 F.2d at 479-85. Moreover, the Supreme Court has altogether omitted the word "solely" in its most recent formulation of the investment contract definition. In United Housing Foundation, Inc. v. Forman, supra (holding that stock in a housing cooperative that entitled the owner to the use of an apartment, but not to any cash return, was not a security) (appeal from the granting of a motion to dismiss for lack of subject matter jurisdiction), the Court quoted the investment contract definition
The plaintiffs argue that they meet this liberalized form of the third prong of the Howey test by virtue of the significant role left to Godwin Investments in the promotional materials:
Appellants' Brief 31. They argue that, since these central tasks were to be performed by the manager, the scheme allowed the investors to rely on others for "those essential managerial efforts which affect the failure or success of the enterprise," and, accordingly, that the venture interests were securities under Howey and its progeny. However, whether the role actually played by the plaintiffs in the management of the Property was so significant that their joint venture interests cannot be securities is an issue that was not developed to any significant degree by any of the litigants in the district court. None of the affidavits or briefs in support of the defendants' motions under Rules 12(b)(1) and 56 discusses the extent of the plaintiffs' actual participation in the management of the Property.
Although this issue has not previously arisen in the Fifth Circuit, a number of courts elsewhere have dealt with a variety of situations in which investors retained substantial control but in fact remained passive. The question has been faced in the context of franchise agreements, the sale of oil and gas leases, the sale of real estate, and the sale of partnership or joint venture interests. Insofar as the power retained by the investors is a real one which they are in fact capable of exercising, courts have uniformly refused to find securities in such cases.
In Mr. Steak, Inc. v. River City Steak, Inc., 460 F.2d 666 (10th Cir. 1972), affirming 334 F.Supp. 640 (D.Colo.1970), the Court of Appeals for the Tenth Circuit affirmed a dismissal, for failure to state a claim, of alleged federal securities claims arising out of a franchise agreement which envisioned substantial operation by the franchisor but left some meaningful control in the hands of the franchisee. The agreement provided that the franchisor (Mr. Steak) would construct and equip the establishment, train the manager, set a number of restrictions on the operation of the restaurant (including product standards, initial hiring, uniforms and the opening of the restaurant), manage the franchise's financial affairs and in fact retain the right to dismiss the manager for non-compliance with its requests. The franchisee (River City Steak) retained the right to direct the daily operation of the restaurant, and had the power to dismiss the manager and other employees. In fact,
324 F.Supp. at 645, quoted at 460 F.2d at 669.
The Tenth Circuit has since been faced with a case analogous to Mr. Steak, Inc. but in the context of the sale of an oil and gas interest. In Ballard & Cordell Corporation v. Zoller & Dannenberg Exploration, Ltd., 544 F.2d 1059 (10th Cir. 1976) (appeal from the dismissal, for failure to state a claim, of counterclaims based on federal securities law), cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1060 (1977), the defendants (two oil exploration firms) had offered to purchase a 50% working interest in two wells and lease units; after the plaintiffs accepted the offer, the defendants tried to back out, and the plaintiffs sued to enforce the contract. The defendants then asserted in a counterclaim that the transaction created an investment contract because of their dependence on the independent operator who held the lease.
The Court of Appeals for the Eighth Circuit has twice faced the case of a purchaser of real estate who simultaneously with the purchase enters into a contract of management with the vendor, yet retains ultimate control of the operation. In Fargo Partners v. Dain Corp., 540 F.2d 912 (8th Cir. 1976) (appeal from a dismissal for lack of subject matter jurisdiction), the plaintiff purchased a 248-unit apartment complex in a transaction in which it signed a management agreement granting back to the vendor an exclusive right to manage the property, including all of the marketing, renting, maintenance and financial activities attendant to running an apartment complex. The agreement provided, however, that it could be cancelled by the purchaser upon thirty days' notice. The court found that no investment contract was created by the transaction:
540 F.2d at 914-15 (emphasis in original). The court came to the same conclusion when faced with a similar transaction involving some of the same parties but more seriously restricting the purchaser's right to change the management. In Schultz v. Dain Corp., 568 F.2d 612 (8th Cir. 1978) (appeal from a dismissal for lack of subject matter jurisdiction), the apartment complex purchaser entered into a three-year non-revocable management contract with the vendors. Still the transaction did not create an investment contract. The purchaser had negotiated the contract himself and delegated his responsibility to an agent for a limited period of time, after which he was free to negotiate a new management arrangement. Therefore the investor had "retained ultimate control over the apartment complex" and had not purchased a security.
These cases from the Tenth and Eighth Circuits-dealing in turn with the purchase of franchise, oil and gas, and real estate interests-are consistent in their treatment of latent investor control. In each case the actual control exercised by the purchaser is irrelevant. So long as the investor has the right to control the asset he has purchased, he is not dependent on the promoter or on a third party for "those essential managerial efforts which affect the failure or success of the enterprise." But a complication is added where the investment asset is not owned directly, but is held instead through a joint venture or general partnership. While the partnership per se may have full ownership powers over the asset, each individual partner has only his proportionate vote in the partnership.
Nevertheless the courts that have ruled on the issue have held that a general partnership or joint venture interest generally cannot be an investment contract under the federal securities acts. In New York Stock Exchange, Inc. v. Sloan, 394 F.Supp. 1303 (S.D.N.Y. 1975), the District Court for the Southern District of New York granted summary judgment against general partners of a member firm who had brought a counterclaim against the New York Stock Exchange for failure to enforce the Exchange's rules. The court held that general partnerships were not securities, regardless of the actual participation of the partners:
394 F.Supp. at 1314.
In Hirsch v. duPont, 396 F.Supp. 1214 (S.D.N.Y.), aff'd, 553 F.2d 750 (2d Cir. 1977), the District Court for the Southern District of New York again granted summary judgment on this issue. The plaintiffs were general partners of a brokerage firm which had been liquidated; its assets had been sold to a second brokerage firm, which as part of the deal agreed to sell general partnership interests in itself to certain partners of the liquidated firm. The court followed its earlier reasoning in Sloan and held that the partnership interests were not securities. But the court added an important reason for its holding:
396 F.Supp. at 1222. Similar reasoning was behind the dismissal of a federal securities claim in Oxford Finance Companies, Inc. v. Harvey, 385 F.Supp. 431 (E.D. Pa. 1974). The plaintiff had entered into a joint venture with the defendant for the improvement of a parcel of real estate, and was suing for alleged violations of the anti-fraud provisions of the securities acts. But the joint venture agreement had required the approval of the plaintiff for most managerial decisions, and provided for joint control of capital withdrawals. The court held that no investment contract was created, because the control over managerial decisions and over capital withdrawals was each enough to afford the plaintiff "significant protection of its investment."
The same result has been reached by those state courts which have considered the effect of latent partnership control. In Polikoff v. Levy, 55 Ill.App.2d 229, 204 N.E.2d 807, cert. denied, 382 U.S. 903, 86 S.Ct. 237, 15 L.Ed.2d 156 (1965), the Illinois Court of Appeals held that a joint venture interest in a motel was not a security. Although the defendant had sold a number of interests in the property and the plaintiff had taken no part in its management, the court found that the plaintiff was adequately protected by his "equal right of control over the property and right to know what is going on." Since the plaintiff had assumed the role of a joint venturer, "he did not pay his money with the expectation that future profits from the venture would come solely from the efforts of others." The Texas Court of Civil Appeals came to the same conclusion when faced with the sale of joint venture interests in a tract of undeveloped land near Dallas, Texas. In McConathy v. Dal Mac Commercial Real Estate, Inc., 545 S.W.2d 871 (Tex.Civ.App.Texarkana 1976, no writ), the court found that the investors expected to hold the property for appreciation and therefore were not dependent on its manager. Where the only management duties of the managing venturer were the maintenance and protection of the property-insuring it, paying taxes and so forth-the court held that an association of persons in a joint venture lacked "the essential element of reliance on the managerial, operational or developmental efforts of others." See also Oakley v. Rosen, 76 Cal.App.2d 310, 173 P.2d 55 (1946).
Although general partners and joint venturers may not individually have decisive control over major decisions, they do have the sort of influence which generally provides them with access to important information and protection against a dependence on others. Moreover, partnership powers are not in the nature of a nominal role in the enterprise which a seller of investment contracts would include in order to avoid the securities laws; on the contrary, one would expect such a promoter to insist on ultimate control over the investment venture. An investor who is offered an interest in a general partnership or joint venture should be on notice, therefore, that his ownership rights are significant, and that the federal securities acts will not protect him from a mere failure to exercise his rights.
It should be clear from the context of the cases discussed above, however, that the mere fact that an investment takes the form of a general partnership or joint venture does not inevitably insulate it from the reach of the federal securities laws. All of these cases presume that the investor-partner is not in fact dependent on the promoter or manager for the effective exercise of his partnership powers. If, for example, the partner has irrevocably delegated his powers, or is incapable of exercising them, or is so dependent on the particular expertise
Thus, a general partnership in which some agreement among the partners places the controlling power in the hands of certain managing partners may be an investment contract with respect to the other partners. Pawgun v. Silverstein, 265 F.Supp. 898 (S.D.N.Y. 1967). In such a case the agreement allocates partnership power as in a limited partnership, which has long been held to be an investment contract. See generally 3 Bloomenthal, Securities & Federal Corporate Law § 2.12(2) (1979). Similarly, one would not expect partnership interests sold to large numbers of the general public to provide any real partnership control; at some point there would be so many partners that a partnership vote would be more like a corporate vote, each partner's role having been diluted to the level of a single shareholder in a corporation. Such an arrangement might well constitute an investment contract.
A general partner or joint venturer who lacks the business experience and expertise necessary to intelligently exercise partnership powers may also be dependent on the investment's promoter or manager. This sort of dependence was absent in all of the cases, discussed supra, which found that passive but powerful investors did not purchase investment contracts. The decision in Mr. Steak, Inc. was premised in part on the failure of the franchisee to demonstrate "that it lacked the requisite knowledge, skill or expertise" to manage the restaurant. 324 F.Supp. at 645. The Court of Appeals for the Eighth Circuit was careful to note, in deciding Fargo Partners, that it was "not a case where a small investor is helplessly reliant on the promoter's efforts because of lack of business knowledge, finances, or control over the operation." 540 F.2d at 915. The purchasers in Ballard & Cordell were themselves oil exploration firms; the partners in Sloan and Hirsch were professional brokers contesting the sale to them of partnerships in brokerage firms; and the partners in Oxford Finance Co. were business corporations. These purchasers or partners were well able to protect themselves. But the same might not be true in other cases. A scheme which sells investments to inexperienced and unknowledgeable members of the general public cannot escape the reach of the securities laws merely by labelling itself a general partnership or joint venture. Such investors may be led to expect profits to be derived from the efforts of others in spite of partnership powers nominally retained by them.
A genuine dependence on others might also exist where the partners are forced to rely on some particular non-replaceable expertise on the part of a promoter or manager. Even the most knowledgeable partner may be left with no meaningful option when there is no reasonable replacement for the investment's manager. For example, investors may be induced to enter a real estate partnership on the promise that the partnership's manager has some unique understanding of the real estate market in the area in which the partnership is to invest; the partners may have the legal right to replace the manager, but they could do so only by forfeiting the management ability on which the success of the venture is dependent. Or investors may purchase joint venture interests in an operating business in reliance on the managing partner's unusual experience and ability in running that particular business; again, a legal right of control would have little value if the partners were forced to rely on the manager's unique abilities. We must emphasize, however, that a reliance on others does not exist merely because the partners have chosen to hire another party to manage their investment. The delegation of rights and duties-standing alone-does not give rise to the sort of dependence on others which underlies the third prong of the Howey test. An investor who retains control over his investment has not purchased an interest in a common venture "premised on the reasonable expectation of profits to be
All of this indicates that an investor who claims his general partnership or joint venture interest is an investment contract has a difficult burden to overcome. On the face of a partnership agreement, the investor retains substantial control over his investment and an ability to protect himself from the managing partner or hired manager. Such an investor must demonstrate that, in spite of the partnership form which the investment took, he was so dependent on the promoter or on a third party that he was in fact unable to exercise meaningful partnership powers.
None of these factors appear to be present in this case. In the first place, there is no representation or indication in the record that the partnership agreement did not really give the investors partnership powers. The plaintiffs do assert that they did not expect to exercise these powers, and that they in fact purchased their interests on the expectation that they would rely on Godwin Investments to make all management decisions. But they do not deny that the agreement allowed them to exercise ultimate control should they decide to do so, and it appears that, when trouble arose in late 1975, the plaintiffs did attend joint venture meetings and take a greater interest in important decisions.
In the second place, it is clear that the plaintiffs were capable of exercising genuine control over the enterprise. Williamson was Chairman of the Board of Frito-Lay, Inc., at the same time as Lilley was its President; Lilley later succeeded Williamson
The closest that the plaintiffs come to the third factor consists of the generalized argument that they were dependent on Godwin Investments' promise to "plan uses for the property, obtain zoning changes, refinance, manage condemnation proceedings, and develop, lease or sell the property to return a profit." Appellants' Brief 31. It is true that the Property would ultimately have to be developed or sold, and in the interim managed, before a profit could be returned on it; and it is true that Godwin Investments promised to perform these tasks. But this alone does not establish a dependence on Godwin Investments so great as to deprive the plaintiffs of their partnership powers. The plaintiffs must allege that Godwin Investments was uniquely capable of such tasks or that the partners were incapable, within reasonable limits, of finding a replacement manager. Godwin Investment's promise must be more than a binding contract enforceable under state law; it must create the sort of dependence implicit in an investment contract. However, the plaintiffs have at no point asserted or alleged that Godwin Investments was uniquely capable of either managing or developing the Property, or that their dependence on the expertise of Godwin Investments was so great that they were incapable, within reasonable limits, of finding a replacement. Each of the plaintiffs makes only the vague statement, in his affidavit in opposition to the defendants' motions under Rules 12(b)(1) and 56, that "I relied and was dependent upon the efforts" of Godwin Investments. We conclude, therefore, that the plaintiffs have not raised the possibility of a dependence on the unique or irreplaceable expertise of Godwin Investments as an issue in this case.
To sum up: The plaintiffs predicated their federal cause of action (and therefore federal jurisdiction) on the inclusion of the joint venture interests they purchased within the reach of the 1933 Act and the 1934 Act. They argued that the interests were "investment contracts," and therefore securities, by virtue of the significance of Godwin Investments' managerial efforts. They asserted, in this regard, that Godwin Investments had promised ultimately to pursue the sale or development of the Property, and in the interim to manage it. In response, the defendants argued that the plaintiffs possessed meaningful powers under the joint venture agreements, and contended that these powers were enough to preclude as a matter of law a finding that the joint venture interests were securities. We have determined that absent one of the limited circumstances discussed above, meaningful powers possessed by joint venturers under a joint venture agreement do indeed preclude a finding that joint venture interests are securities. As our discussion should indicate, the plaintiffs have an extremely difficult factual burden if they are to establish that the joint venture interests they purchased are securities. As we concluded in Part II of this opinion, however, the district court's dismissal of this case for lack of subject matter jurisdiction was nevertheless improper. At the time the district court considered the defendants' motions under Rule 12(b)(1), neither the Supreme Court nor this court had considered the effect of meaningful powers retained by joint venturers on the inclusion of joint venture interests within the investment contract concept. Therefore the
Our discussion of the facts in this case has been solely for the purpose of determining whether the district court properly dismissed this case for lack of subject matter jurisdiction. As explained in Part II of this opinion (under "The Factual Basis of the District Court's Decision"), we have assumed for this purpose that all material factual disputes were resolved by the district court in favor of the defendants and in support of its order, and our discussion and analysis of the facts have been based on that assumption. Since we have already decided that the district court dismissed this case for lack of subject matter jurisdiction, and did not rule on any motion for summary judgment, no such motion is before us. As our discussion in Part II of this opinion indicates, the criteria for the granting of a motion for summary judgment are markedly different from the criteria for the granting of a motion to dismiss for lack of subject matter jurisdiction, and the standards of appellate review of orders granting such motions are also markedly different. Accordingly we have made no review of the substantial record in this case with a view to determining whether any motion for summary judgment could properly have been granted, and we express no views with respect thereto.
IV. THE PURCHASE MONEY NOTES
The definitional section of each of the 1933 Act and the 1934 Act, see supra note 11, includes "any note" within its purview. But section 3(a)(10) of the 1934 Act excludes from the definition "any note ... which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited."
Despite the literal wording of the exception, many courts have recognized that a precise reliance on it would thwart the purposes of the securities acts, and have therefore turned to more functional approaches in deciding when a note becomes a security. See, e. g., Amfac Manufacturing Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978); Great Western Bank & Trust v. Kotz, 532 F.2d 1252 (9th Cir. 1976); Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126 (2d Cir. 1976); C.N.S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354 (7th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975); Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). See generally E. Sonnenschein, "Federal Securities Laws Coverage of Note Transactions: The Antifraud Provisions," 35 Bus.Law. 1567 (July, 1980).
We have followed one such functional approach and held that an investment note is a security while a commercial note is not a security, regardless of the literal reach of the definitional sections and the exception written into section 3(a)(10) of the 1934 Act. In McClure v. First National Bank of Lubbock, Texas, 497 F.2d 490 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975), we explained:
497 F.2d at 494-95. Accord, National Bank of Commerce of Dallas v. All American Assurance Co., 583 F.2d 1295 (5th Cir. 1978); Securities & Exchange Commission v. Continental Commodities Corp., 497 F.2d 516 (5th Cir. 1974); Bellah v. First National Bank of Hereford, Texas, 495 F.2d 1109 (5th Cir. 1974); First Federal Savings & Loan Association v. Mortgage Corp. of the South, 467 F.Supp. 943 (N.D. Ala.1979), appeal docketed, No. 79-2141 (5th Cir., May 10, 1979); Sea Pines of Virginia, Inc. v. PLD, Ltd., 399 F.Supp. 708 (M.D.Fla.1975).
It is easier to state that the "investment-commercial" distinction is the basis of our decisions than it is to formulate any comprehensive definition of those terms. We have followed, instead, a case by case approach, relying in each instance on "the economic realities underlying [the] transaction, and not on the name appended thereto," United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621 (1975). We must begin, therefore, by examining the cases in which we have applied this test. In Bellah v. First National Bank of Hereford, Texas, supra, the plaintiffs owned a livestock business for which they had borrowed operating funds from the bank. They executed a six-month promissory note, secured by a deed of trust covering seventeen tracts of real estate, to the Bank. We found that the bank merely intended to aid the owners in the operation of their livestock business and did not seek to profit from the successful operation of the enterprise. On this basis we found that the notes were commercial in nature and thus not securities, and dismissed the case for lack of subject matter jurisdiction.
In McClure v. First National Bank of Lubbock, Texas, supra, the plaintiff owned 50% of a corporation which had borrowed funds from the bank, for which it had executed a six-month promissory note secured by a deed of trust on the corporation's real estate. The plaintiff contended that her consent had been obtained for the transaction on the representation of her husband, who owned the other 50% of the corporation, that the funds would be used to pay corporate obligations; in fact, they were used to repay the husband's personal obligations. We found that the note issued to the bank was not a security, and dismissed the case for lack of subject matter jurisdiction. Our decision was based on the absence of two factors which are typically present where "investment notes" are found to exist. First, only the bank and the corporation were involved in the transaction. The corporation's notes were not offered to some class of investors, nor were they acquired by the bank for speculation or investment. Second, the loan was extended solely to allow the corporation to pay off its business debt. Thus, the corporation did not obtain investment assets with the proceeds of the loan. The fact that neither of these elements was present was a strong indication that the notes were "commercial" in nature; but, as we stated in McClure, these two factors "are not necessarily the only ones appropriate for consideration," 497 F.2d at 493.
In Securities & Exchange Commission v. Continental Commodities Corp., supra, a commodities options dealer issued notes to some of its customers in partial reimbursement of sums owed them upon the suspension of trading in futures options. The complaint alleged that Continental Commodities Corp. exacted a promise of forebearance from legal action from those of its customers who accepted 60% of their original investments in cash and the remaining 40% in the form of non-interest bearing, short-term promissory notes. The firm allegedly represented that the S.E.C. would allow it to remain in business if payments
In National Bank of Commerce of Dallas v. All American Assurance Co., supra, the bank sought to recover damages from borrowers who had allegedly pledged worthless stock in procuring a loan. We held that the note executed by the borrowers was commercial in nature, and affirmed the district court's order dismissing the case for lack of subject matter jurisdiction. There was nothing in the transaction to indicate that it was anything other than a loan evidenced by a promissory note and secured by a pledge of securities. We relied on the facts that there were no special investment rights given to the payee; that the note was payable in fixed amounts at fixed times; that repayment was not conditioned upon profit or productivity of the company; that no class of investors was involved; and that the bank anticipated no gain beyond repayment of the note with interest.
In several instances district courts in the Fifth Circuit have applied the investment-commercial distinction and determined whether a note was a security. In Sea Pines of Virginia, Inc. v. PLD, Ltd., supra, the maker of a note executed as purchase money for a real estate limited partnership interest sought a preliminary injunction to prevent collection by the payees, on the basis of securities acts violations. The court denied the injunction. It held that the note was commercial because it served as a "cash substitute" for the purchase price. The acquisition of the note was not the motivating factor behind the defendant's sale of a limited partnership interest; the real object of the transaction was an exchange of the property for the purchase price, which in this case was accepted in the form of a note. In First Federal Savings & Loan Association of Miami v. Mortgage Corp. of the South, supra (summary judgment granted against the defendants on other grounds), the court found that a note issued to a lender who provided the permanent financing for an apartment complex development was an investment note and therefore a security. The court relied on the facts that the note was long-term (twenty years); that the permanent lender had initiated the transaction, and was in fact seeking loans of this nature throughout the country; that the lender was a third party to the initial transaction (the construction loan); that the negotiations which preceded the purchase of the notes indicated an awareness on the part of all parties that the successful management and completion of the project would determine the value of the notes; and that the lender acquired a substantial security interest in the projects which, given the size of the loans, created a dependence of the permanent lender on the developer and on the initial lender. See also Strain v. Citizens Bank & Trust Co., 68 F.R.D. 697, 701-02 (E.D.La.1975).
Although all of these decisions rest on the "commercial-investment" distinction, none of them attempts a conclusive explanation of the distinction or posits any all-inclusive definition of the terms "commercial" and "investment" in this context. There are therefore important unanswered questions in this area. See E. Sonnenschein, Jr., supra, at 1590-91. This case, however, is not the proper place to answer these questions or to begin the formulation of a more precise test than has already developed, for the promissory notes involved in this case are clearly not securities under any reasonable interpretation of our prior cases.
The notes issued by the plaintiffs were real estate purchase money notes, given to the defendants in exchange for the Property. As in Sea Pines of Virginia, Inc. v. PLD, Ltd., supra, the purpose of the note
We need not determine, however, whether the plaintiffs' federal securities claims in relation to the notes are so clearly immaterial or insubstantial that they can be dismissed for lack of subject matter jurisdiction. Each of the plaintiffs' federal securities claims is also based on their purchase of joint venture interests in the Property, and, as we determined above, these claims cannot be dismissed for lack of subject matter jurisdiction. We do note, however, that in the four recent instances in which we have considered whether a note was a security within the meaning of the federal securities acts-i. e., National Bank of Commerce of Dallas v. All American Assurance Co., supra; McClure v. First National Bank of Lubbock, Texas, supra; Securities & Exchange Commission v. Continental Commodities Corp., supra; Bellah v. First National Bank of Hereford, Texas, supra — the issue was raised in the form of a motion to dismiss for lack of subject matter jurisdiction. Although it does not appear that the appropriateness of such a motion was challenged, we did not find in any of these cases that it was improper.
We conclude that the judgment of the district court dismissing this case for lack of subject matter jurisdiction must be reversed because the plaintiffs' federal securities claims, insofar as they arise out of the purchase of joint venture interests, are not so clearly immaterial or insubstantial as to justify their dismissal under the strict standard mandated by Bell v. Hood, supra. We also reverse the judgment of the district court awarding costs to the defendants. We remand this case to the district court for further proceedings consistent with this opinion.
REVERSED and REMANDED.
Fed.R.Civ.P. 41(b) provides:
Section 3(a)(10) of the Securities Exchange Act of 1934 corresponds almost exactly with this definition. It adds, however, an exception to the above:
Thus, one would have to show that the reliance on the manager which forms the basis of the partner's expectations was an understanding in the original transaction, and not some subsequent decision to delegate partnership duties. In this case the issue is not raised, as no party has argued that such dependence as may exist was the result of transactions subsequent to the sale of the Property to the joint ventures.