UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-21092
Summary Calendar
KENNETH B. KARPF, ET AL.,
Plaintiffs,
KENNETH B. KARPF,
Plaintiff-Appellant,
versus
DUNCAN E. WINE; D.E. WINE INVESTMENTS,
INCORPORATED; VINTAGE HOLDING CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(H-95-CV-1019)
August 15, 1997
Before POLITZ, Chief Judge, KING and SMITH, Circuit Judges.
PER CURIAM:*
Kenneth B. Karpf appeals the dismissal with prejudice of his complaint
alleging violations of section 10(b) of the Securities Exchange Act and Securities
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
and Exchange Commission Rule 10b-5 in connection with the redemption of his
stock by Vintage Holding Corporation. The district court dismissed Karpf’s claims
on the ground that, despite an opportunity to amend, he had failed to plead fraud
with the requisite particularity. Karpf also appeals the dismissal without prejudice
of his supplemental state law claims for recision, usurpation of corporate
opportunity, violation of the Texas Securities Act, and a shareholder derivative
action.
One pleading fraud must state with particularity the circumstances
constituting the claimed fraud.1 We consider a Rule 9(b) dismissal of a complaint
alleging fraud to be a dismissal for failure to state a claim for which relief can be
granted, and we review such dismissal de novo, accepting as true all well-pleaded
allegations.2 To state a claim for federal securities fraud, the complainant must
allege “(1) a misstatement or omission; (2) of material fact; (3) made with the
intent to defraud; (4) upon which the plaintiff relied; and (5) which proximately
caused the plaintiff’s injury.”3 Our review of the record and the briefs of the parties
persuades that Karpf’s complaint fails to allege a claim of federal securities fraud.
1
Fed.R.Civ.P. 9(b).
2
Lovelace v. Spectrum Software, Inc., 78 F.3d 1015 (5th Cir. 1996).
3
Williams v. WMX Technologies, Inc., 112 F.3d 175, 177 (5th Cir. 1997); Tuchman
v. DSC Communications Corp., 14 F.3d 1061 (5th Cir. 1994).
2
Karpf does not contend that the district court erred by refusing to exercise
supplemental jurisdiction over his state law claims. That issue is deemed
abandoned.4
AFFIRMED.
4
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744 (5th Cir. 1987).
3