FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEIDE BETZ,
Plaintiff-Appellant,
v. No. 05-15704
TRAINER WORTHAM & COMPANY, D.C. No.
CV-03-03231-SI
INC.; DAVID P. COMO; FIRST
REPUBLIC BANK, a Nevada OPINION
corporation; ROBERT VILE,
Defendants-Appellees.
On Remand From The United States Supreme Court
Filed July 7, 2010
Before: John T. Noonan, Ronald M. Gould and
Johnnie B. Rawlinson, Circuit Judges:
Opinion by Judge Gould
9641
BETZ v. TRAINER WORTHAM & CO. 9643
OPINION
GOULD, Circuit Judge:
On this appeal we previously held that there is a genuine
issue of material fact whether Heide Betz’s securities fraud
claim against Trainer Wortham & Company, Inc., David P.
Como, First Republic Bank, and Robert Vile (collectively
Appellees) is time-barred under 28 U.S.C. § 1658(b). Betz v.
Trainer Wortham & Co., 519 F.3d 863, 871-72 (9th Cir.
2008), vacated, 78 U.S.L.W. 3642 (U.S. May 3, 2010) (No.
07-1489). Appellees sought review of our decision through a
petition for a writ of certiorari filed in the United States
Supreme Court. After deciding the related case of Merck &
Co., Inc. v. Reynolds, 130 S. Ct. 1784 (2010), in which the
Court construed the statute of limitations in 28 U.S.C.
§ 1658(b)(1) for the first time, the Court granted Appellee’s
certiorari petition, vacated our prior opinion, and remanded
with instructions for us to reconsider the appeal in the light of
its decision in Merck. Trainer Wortham & Co. v. Betz, 78
U.S.L.W. 3642 (U.S. May 3, 2010) (No. 07-1489).
Subsequently, on May 26, 2010, Appellees filed a Motion
To Remand To District Court For Further Proceedings, argu-
ing that “the new standard established in Merck requires anal-
ysis of the facts of this case—an analysis that the District
Court is best situated to perform.” Appellees additionally
argue that, if granted a remand, they “anticipate making fur-
ther dispositive motions” on grounds including the statute of
frauds and the application of certain terms of the written con-
tract between the parties. Appellees argue that judicial effi-
ciency favors a remand so that these issues can be considered
together with the application of the Merck standard to the stat-
ute of limitations issue.
Next, Appellant Betz on June 3, 2010, filed her Response
Of Appellant To Appellees’ Motion To Remand To District
Court For Further Proceedings, arguing that before remanding
9644 BETZ v. TRAINER WORTHAM & CO.
the case to the district court, we should reinstate our prior rul-
ing that Betz raised genuine issues of material fact with
respect to both actual and constructive discovery. See Betz,
519 F.3d at 867-73. Appellant argues that Merck did not
create a new standard, and that “the true effect of Merck is to
give U.S. Supreme Court approval to the Ninth Circuit’s view
of actual and constructive discovery.” Appellant further con-
tends that the Supreme Court in Merck agreed with the Ninth
Circuit: that “discovery” in 28 U.S.C. § 1658(b) encompasses
the facts constituting the violation actually discovered by the
plaintiff as well as those facts that a reasonably diligent plain-
tiff would have discovered; that constructive discovery occurs
when a reasonably diligent plaintiff would have actually dis-
covered the facts constituting the violation; and that scienter
is one of the facts constituting a securities violation for pur-
poses of the discovery inquiry. See Merck, 130 S. Ct. at
1793-98.
[1] Although Appellant is correct that there are some simi-
larities between our prior opinion and the recent Merck deci-
sion, we nonetheless conclude that Appellees’ Motion To
Remand should be granted. We believe that a remand is the
better procedure here for several reasons. First, the district
court has procedures available to it relating to the scope of the
record and the determination of facts which are not available
to us. For example, the district court could choose in its dis-
cretion to permit the parties to file supplemental affidavits on
any fact issues that are relevant in light of the Supreme
Court’s holding in Merck. See Fed. R. Civ. P. 56(e). Simi-
larly, the district court may entertain a motion to reopen dis-
covery or may order discovery pursuant to Federal Rule of
Civil Procedure 26(b). Further, the district court has discretion
under Federal Rule of Civil Procedure 16 to require the par-
ties to participate in pretrial conferencing to the end of sub-
mitting more detailed factual stipulations or statements about
contested issues of fact as relevant under the standard set by
Merck. In our view, the variety of tools available to the dis-
BETZ v. TRAINER WORTHAM & CO. 9645
trict court for supplementing the record with any necessary
facts makes a remand the better immediate procedure.
[2] Second, Appellees have argued that they plan to bring
further “dispositive motions,” and if that is the case it is
within the province of the district court to elect whether to
grapple with those issues before or after resolving the statute
of limitations issue that has been brought to center stage by
Merck and the Supreme Court’s remand to us.
[3] Third, we do not see how it can ever be incorrect, once
the Supreme Court has vacated a circuit court decision and
remanded for further assessment in light of one of its deci-
sions, for the court of appeals simply to vacate the district
court’s decision and to remand for further proceedings in the
light of the pertinent Supreme Court decision. Once the dis-
trict court has made its decision and a final order is presented,
that matter can again be appealed to this court if either party
seeks further review.
For these reasons, we vacate the district court’s prior sum-
mary judgment on the statute of limitations issue and we
remand to the district court for further proceedings consistent
with this opinion and with Merck.
VACATED AND REMANDED.