Dr. Augustus Capers; Gertrude Capers Jtwros v. SMITH BARNEY CITIGROUP On Appeal From the United States District Court For the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2587
________________
DR. AUGUSTUS CAPERS;
GERTRUDE CAPERS JTWROS,
Appellants
v.
SMITH BARNEY CITIGROUP
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 05-cv-01237)
District Judge: Honorable Faith S. Hochberg
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
November 2, 2005
Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed November 8, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Dr. Augustus Capers and Gertrude Capers appeal the order of the United States
District Court for the District of New Jersey, dismissing their complaint without prejudice
for lack of subject matter jurisdiction. We will affirm.

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The appellee explains in its brief that Smith Barney is a division of Citigroup1
Global Markets Inc., wholly-owned by Citigroup Financial Products, Inc., wholly-owned
by Citigroup Global Markets Holdings, Inc., wholly-owned by Citigroup, Inc.
The Caperses refer to the same citation in their brief on appeal.2
In their brief on appeal, the Caperses reiterate this lone allegation as the factual3
basis of the complaint. Appellants’ Brief at 2.
2
On March 1, 2005, the Caperses filed a complaint in the United States District
Court for the District of New Jersey, naming “Smith Barney Citigroup” (“Smith1
Barney”) as the defendant. The complaint states that the action was “brought pursuant to
U.S.C.A. Title 15 Commerce & Trade §§ 77a to 77bbbb Securities & Trust Indentures,
Chapter 2A Domestic Securities.” (Complaint ¶1.) The Caperses present references and2
case citations alluding to, among other things, market prices of stocks, values of
securities, and damages awards. The sole factual allegation in the Caperses’ complaint,
under the heading “Complaint on a Promissory Note,” is that the “[d]efendant on or about
October 18, 2004, executed and delivered to plaintiff a promissory note,” noting that the
copy of the promissory note was attached as an exhibit. (Id. ¶8.) The exhibit consists of a
deposit receipt concerning 100 shares of Thermodynamics, Inc. The Capereses contend3
that Smith Barney owes them “the amount of said note and interest,” (id. ¶9) and demand
judgment in the amount of $200,000,000.
Concerning the subject matter jurisdiction of the District Court, the Caperses have
alleged as follows:

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3
It is sufficient for subject-matter jurisdiction under this section that
offers were made within United States without showing that they
were accepted by actual sale or that alleged misrepresentations were
in fact successful in inducing sale of securities by reliance thereon.
Securities and Exchange Commission v. Gulf Intercontinental
Finance Corp., S.D. Fla. 1963, 223 F. Supp. 987.
[sic] (Complaint ¶6.) By order entered March 11, 2005, the District Court directed the
Caperses to file a submission providing the basis for the court’s jurisdiction. The order
requested information regarding the citizenship of the parties and amount in controversy
if the action was based on diversity jurisdiction, and regarding the federal statute and
specific section providing for a private right of action if the action was based on a federal
question. The Caperses filed a reply, stating that the basis for jurisdiction was “already
stated in the complaint”; that the Caperses were “United States citizens” and Smith
Barney’s “legal dept. is located at 388 Greenwich Street, 16th Floor, New York, NY
10048”; that damages cannot yet be stated with precision; and that the statutory
provisions upon which federal question jurisdiction was based “are referenced in the
complaint.” (Response to March 11, 2005 Order.) The Caperses also cited Article III of
the United States Constitution. By order entered March 17, 2005, the District Court
directed the Caperses to show cause why the case should not be dismissed for failure to
comply with Rule 8(a) of the Federal Rules of Civil Procedure, requiring a short and plain
statement of the claim. In reply, the Caperses referred to the section of the complaint
titled “Complaint on a Promissory Note,” including paragraphs 8 and 9.
Smith Barney filed a motion to dismiss the complaint under Rules 8(a), 9(b)&(g),

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In Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (per curiam),4
this Court, noting the general rule that an order dismissing a complaint without prejudice
is not appealable, stated that “[o]nly if the plaintiff cannot amend or declares his intention
to stand on his complaint does the order become final and appealable.” In light of the
Caperses’ responses to the District Court’s March 2005 orders, we conclude that the
Caperses have declared their intention to stand on their complaint.
4
and 12(b). By order entered April 20, 2005, the District Court dismissed the complaint
without prejudice, having determined that it lacked subject matter jurisdiction. The
District Court deemed Smith Barney’s motion to be moot.
The Capereses appeal. We have appellate jurisdiction under 28 U.S.C. § 1291.4
Our review of the District Court’s dismissal for lack of subject matter jurisdiction is
plenary. See Dresser Indus., Inc. v. Underwriter’s at Lloyd’s of London, 106 F.3d 494,
496 (3d Cir. 1997). We may affirm the District Court on any ground supported by the
record. Tourscher v. McCullough, 184 F.3d 236, 240 (3rd Cir. 1999).
On appeal, the Caperses do not contend that their complaint was premised on
diversity jurisdiction under 28 U.S.C. § 1332. Rather, despite their characterization of the
action as a “complaint on a promissory note,” it appears that they invoke federal securities
statutes as the basis for federal question jurisdiction under 28 U.S.C. § 1331. However,
even if the District Court had subject matter jurisdiction, we conclude that the complaint
does not comply with Rule 8(a). Despite the Caperses’ insistence that the allegations
contained in paragraphs 8 and 9 (noted above) comply with Rule 8(a), we discern nothing
in the complaint that qualifies as a short and plain statement of the claim that shows that

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5
the Caperses are entitled to relief. For example, the complaint is devoid of any reference
to any transaction regarding securities of Thermodynamics, or to any wrongdoing by
Smith Barney concerning that transaction. There is no explanation or basis given for the
allegation that Smith Barney owes the Caperses “the amount of said note and interest.”
Upon careful review of the record and the parties’ briefs on appeal, we conclude that the
District Court did not err in dismissing the complaint without prejudice.
Accordingly, we will affirm the District Court’s judgment.

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