J. Donald GOODWIN, Appellant, v. ELKINS & CO., Robert G. Hayden, Richard Sichenzio, and Gabriel F. Nagy, Appellees

SEITZ, Chief Judge,

concurring.

While I join the judgment of the court affirming the order of the district court dismissing the federal claims and directing arbitration of the state claims, I write separately because I differ somewhat from my colleagues on the governing analysis.

Goodwin’s complaint contained federal securities claims and state law claims for fraud and breach of fiduciary duty. Elkins moved to dismiss the federal securities claims under Fed.R.Civ.P. 12(b)(6) [failure to state a claim] and to compel arbitration of the state law claims under an arbitration clause in the Elkins partnership agreement. The district court dismissed the federal claims and ordered arbitration of the state claims.1

My first concern with Judge Garth’s opinion is that it disposes of Goodwin’s complaint by affirming the order of the district court which in granting the motion to dismiss took cognizance of the terms of the partnership agreement even though the agreement was not attached to the complaint. True, the agreement was attached to the motion. However, before the district court could rely on it, it was required by Fed.R.Civ.P. 12(b) to treat the motion as a motion for summary judgment and, ordinarily, give the opposing party an opportunity to respond with any relevant material. This was not done. However, for reasons developed later, I am persuaded that the district court’s failure to treat Elkins’ mo*112tion as a motion for summary judgment was harmless error.

Turning to the federal claims, Judge Becker and I are in agreement that we need not decide here whether a general partner’s rights and responsibilities under the Pennsylvania Uniform Partnership Act are sufficient to prevent a general partner’s interest from being treated as a security for purposes of federal law. Goodwin’s partnership interest was a security under SEC v. Howey, 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), if there was an investment contract between Goodwin and Elkins. In their respective opinions, Judge Garth and Judge Becker have summarized the rights and responsibilities of general partners under the Partnership Agreement. Judge Becker and I agree that a general partner with this degree of participation in partnership affairs is not a security holder. See, e.g., Odom v. Slavik, 703 F.2d 212, 215 (6th Cir.1983); Hirsch v. DuPont, 396 F.Supp. 1214, 1220-21 (S.D.N.Y.1975), aff'd, 553 F.2d 750 (2d Cir.1977); NYSE, Inc. v. Sloan, 394 F.Supp. 1303, 1314 (S.D. N.Y.1975). I do not consider my conclusion to be inconsistent with the dicta in Williamson v. Tucker, 645 F.2d 404, 422-24 (5th Cir.1981), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981).

In Lino v. City Investing Co., 487 F.2d 689, 693 (3d Cir.1973), we held that if an agreement is not on its face an investment contract, and the plaintiff does not allege facts that call into question the substance of the agreement, the plaintiff is not a security holder, as a matter of law. A court’s overriding concern, however, is to determine the “economic reality” of' the enterprise. Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967). See SEC v. Aqua-Sonic Products, 687 F.2d 577, 582-84 (2d Cir.1982) (license agreement is an investment contract where optional management powers described in the agreement are a mere formality and unlikely to be exercised). I turn to the pertinent allegations in Goodwin’s complaint.

Goodwin alleges that:
16. Pursuant to the terms of the Elkins limited partnership agreement, management was vested in Elkins’ executive committee, and upon information and belief, many of Elkins’ management decisions were made solely by the managing general partner.
17. Despite the fact that certain passive partners, such as Goodwin, were denominated as general partners, the terms of the limited partnership agreement left so little control in the hands of Goodwin and other passive general partners who did not serve on the executive committee, that the arrangement distributed control with respect to those general partners including Goodwin as it did with the limited partners.

The question under Lino is whether these allegations point to a significant variance between the terms of the Partnership Agreement and the allocation of management power in fact. Paragraph 16 alleges that the managing partner made many management decisions by himself. It is not clear that this allegation challenges the substance of the Partnership Agreement, which provides that “[t]he Partnership will be managed by the Managing Partner under the supervision of the Executive Committee subject to the approval or decisions of the General Partners.” This language would seem to authorize the managing partner to make management decisions.

It is possible to interpret paragraph 16 as an allegation that the managing partner did not in fact respect the terms of the Partnership Agreement and had usurped some unspecified amount of control.2 Even under this interpretation of paragraph 16, the managing partner’s alleged excesses could not convert Goodwin’s partnership interest into a security. Goodwin does not allege that he and the other general partners were deprived of the management pre*113rogatives that the Partnership Agreement grants on its face, including the right to replace the managing partner by majority vote.3

The allegations in paragraph 17 of Goodwin’s complaint pertain explicitly and exclusively to the allocation of management power pursuant to the terms of the Partnership Agreement. I have concluded above that this allocation of power does not make Goodwin a security holder.

Goodwin argues that he could not control the management of the firm and that he was dissatisfied with management decisions, but an unhappy minority partner does not a security holder make. See Odom, 70S F.2d at 215. Goodwin also argues that he was effectively denied access to the information necessary for him to protect his investment because Elkins failed to inform him of the alleged merger negotiations. Although the federal securities laws protect investors by requiring disclosure of certain kinds of information, see, e.g., Tcherepnin, 389 U.S. at 336, 88 S.Ct. at 553, the federal securities laws are not properly invoked to protect one general partner from the deceit of his copartners.

Although I would treat the district court’s order dismissing Goodwin’s federal securities law claims as an order granting summary judgment in favor of Elkins, I would affirm that order, albeit on grounds different from those on which Judge Garth relies. I join in the disposition of the state law claims.

. I am doubtful that my colleagues correctly construe the arbitration order as one directing arbitration rather than staying the action pending arbitration.

. Goodwin’s complaint does not specify whether a particular managing partner allegedly exceeded his authority under the Partnership Agreement or whether succeeding managing partners exceeded their authority.

. Under the Partnership Agreement, each general partner votes in proportion to his ownership interest. Limited partners have no voting power, and the Partnership Agreement explicitly prohibits their participation in the management or control of the partnership.

. The Ninth Circuit indicated that it would reach that result in Townsend v. Columbia Operations, 667 F.2d 844 (9th Cir.1982). In Townsend, the court stated that the documents underlying the complaint in that case were "in substance” part of the complaint, even though they were not attached to the complaint. The court in Townsend did not, however, need to hold that the underlying documents could be considered on a rule 12(b)(6) motion, because it felt that the notice and opportunity to respond requirements for a summary judgment under Fed.R. Civ.P. 56 had been substantially met.

. Goodwin, in his complaint, clearly relied on the terms of the limited partnership agreement. See jijj 16, 17 of the complaint.