FIREFIGHTERS' RETIREMENT SYSTEM; MUNICIPAL EMPLOYEES RETIREMENT SYSTEM OF LOUISIANA; NEW ORLEANS FIREFIGHTERS' PENSION & RELIEF FUND, Plaintiffs - Appellants Cross-Appellees
EISNERAMPER, L.L.P., Defendant-Appellee Cross-Appellant EISNERAMPER (CAYMAN) LIMITED, Defendant-Appellee
Appeals from the United States District Court for the Middle
District of Louisiana
KING, HAYNES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE
Firefighters' Retirement System, Municipal Employees'
Retirement System, and New Orleans Firefighters' Pension
& Relief Fund sued Defendant-Appellee EisnerAmper LLP,
alleging fraud and related claims. The district court
dismissed Plaintiffs' claims as premature because
Plaintiffs failed to seek pre-suit review by a Louisiana
public accountant review panel. We affirm the dismissal and
remand for the district court to decide in the first instance
whether Defendants are entitled to dismissal with prejudice.
April 2008, Plaintiff-Appellants Firefighters' Retirement
System, Municipal Employees' Retirement System, and New
Orleans Firefighters' Pension & Relief Fund purchased
shares in an investment fund, FIA Leveraged Fund, for a
combined $100 million. By the time this suit was filed in
2014, Leveraged was in bankruptcy and Plaintiffs' shares
had lost much or all of their value.
to offering documents prepared before the sale, Leveraged
sought to achieve returns of 10% to 15% per year by investing
in equity and fixed income securities. Plaintiffs'
investment in Leveraged was protected by redemption rights,
which provided that Plaintiffs' shares: (1) "must be
redeemed" before certain other investors redeemed their
shares, and (2) would be "automatically" redeemed
if the value of the other investors' accounts fell below
20% of the value of Plaintiffs' shares.
EisnerAmper LLP is a large, New York-based accounting firm.
In March 2010, Leveraged retained Eisner to perform an audit
of the fund. The audit was never completed. Plaintiffs allege
that an audit would have revealed that Leveraged made
improper investments outside the fund's mandate. A
completed audit would also have allegedly shown that
Plaintiffs' redemption rights had been triggered, causing
Plaintiffs to redeem their shares and mitigate or eliminate
their loss. Rather than disclose these facts, Plaintiffs
allege that Eisner-seeking to maintain its relationship with
Leveraged and some related funds-participated in a scheme to
trick Plaintiffs into waiving their redemption rights.
Plaintiffs sued Eisner and a Cayman Islands-based subsidiary
in Louisiana state court, alleging fraud, negligence,
negligent misrepresentation, breach of contract as to a third
party beneficiary, and violation of Louisiana securities and
unfair trade practices laws. Eisner removed to the Middle
District of Louisiana. Following denial of a motion to
remand, Eisner moved to dismiss all of Plaintiffs' claims
for lack of personal jurisdiction, improper venue, and
failure to state a claim. The district judge referred
Eisner's motion to a magistrate judge.
magistrate judge recommended that Eisner's motion be
granted. In her Report and Recommendation, the magistrate
judge concluded that the court lacked personal jurisdiction
over Eisner's Cayman Islands-based subsidiary. As to
Eisner, the Report recommended that Plaintiffs' claims be
dismissed as premature for failure to comply with a Louisiana
statute requiring pre-suit review of certain claims by a
public accountant review panel. Despite objections from both
sides to the Report and Recommendation, the district court
adopted it in full.
appeal, Plaintiffs challenge only the conclusion that they
were required to present their claims to a public accountant
review panel. Eisner cross-appeals, seeking to convert the
existing dismissal to a dismissal with prejudice.
review the dismissal of a complaint under Rule 12(b)(6) de
novo. Swenson v. United of Omaha Life Ins. Co., 876
F.3d 809, 810 (5th Cir. 2017). "To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, 'to state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In this case, where
subject matter jurisdiction arises from diversity and
bankruptcy related-to jurisdiction, the court applies
Louisiana substantive law. See Shady Grove Orthopedic
Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 417
(2010); Raleigh v. Ill. Dept. of Revenue, 530 U.S.
15, 20 (2000); see also Firefighters' Ret. Sys. v.
Grant Thornton, L.L.P., No. 17-30274, 2018 WL 3264650,
at *5 (5th Cir. July 3, 2018) (applying Louisiana law). On
issues the Louisiana Supreme Court has not ...