MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE.
This Court's threshold July 27, 1990 memorandum opinion and order (the "Opinion"), issued sua sponte pursuant to its regular practice of conducting an initial review of every complaint newly assigned to its calendar,
directed the attention of counsel for plaintiff Steven Scholes ("Scholes")
to possible subject matter jurisdictional problems. Scholes' counsel responded with a motion under this District Court's General Rule ("GR") 2.31 for reassignment of the action on relatedness grounds to this Court's colleague Honorable James Alesia. That motion has been entered and continued to enable this Court to make the original jurisdictional evaluation, after which -- if and to the extent the action survives that scrutiny -- Judge Alesia will be in a position to evaluate the GR 2.31 motion.
Scholes has now tendered, by simultaneous filing, a First Amended Complaint (the "Complaint") and a Memorandum of Receiver in Support of Federal Subject Matter Jurisdiction. Both because Scholes has an absolute right to file such a pleading amendment (Fed. R. Civ. P. ("Rule") 15(a)) and because the posture of the case is materially changed by the new allegations, this opinion will of course address all the relevant questions in terms of the Complaint rather than the original version dealt with in the Opinion.
Either Scholes and his counsel have been educated by the Opinion as to some of the jurisdictional problems they must overcome or they have given the matter more thought in that respect, and of course that is all to the good in either event. For example, the Complaint has now dropped Douglas as one of those on whose behalf Scholes, as receiver, sues Lawrence Schroeder, Jr. ("Schroeder").
And Complaint paras. 2, 3 and 5(b) reflect total diversity of citizenship between Scholes and Schroeder, so that 28 U.S.C. § 1332 may serve as a possible predicate for subject matter jurisdiction if all other prerequisites are present.
But it is of course black-letter law that federal subject matter jurisdiction extends to causes of action, not to entire cases as such. To be sure, such jurisdiction may be ancillary or pendent as well as original -- but the point is that every asserted cause of action must be looked at separately, rather than tossing them all into the same basket simply because federal jurisdiction may exist (for example) in diversity terms. This opinion therefore turns to a parsing of the several claims advanced by Scholes in the Complaint.
At the outset this Court must reject as untenable Scholes' suggestion at his Mem. 1-2 that an Article III "case" or "controversy" inquiry -- the question at the very core of federal judicial power -- is somehow different from the examination of subject matter jurisdiction as counseled by Wisconsin Knife Works. And by the same token, the notion of a plaintiff's "standing" partakes of a double aspect -- the constitutional one and the prudential one (see, e.g., among the many cases dealing with the constitutional branch, Linda R.S. v. Richard D., 410 U.S. 614, 616-18, 35 L. Ed. 2d 536, 93 S. Ct. 1146 (1973) and, most recently in our Court of Appeals, Love Church v. City of Evanston, 896 F.2d 1082, 1084-85 (7th Cir. 1990)) -- so that concept too demands threshold attention in subject-matter jurisdictional terms.
As for the substantive issues that impact on such jurisdiction, even though the Complaint has sought to cure some of the possible flaws suggested in the Opinion, the Complaint still persists in retaining others. First of all, the appointment of a receiver is inherently limited by the jurisdictional constraints of Article III and all other curbs on federal court jurisdiction. Thus no federal court could appoint a receiver for (say) the troubled Stotler Group entities,
while including in its order of appointment an authorization for that court-appointed officer to bring suits on behalf of (to take an extreme example) IBM or General Motors. To bring the matter closer to the current situation, no federal court could appoint a receiver for one of the Stotler entities for the purpose of bringing causes of action that belong only to another of those entities.
And that identical principle precludes Scholes, as the designated receiver for three corporate entities, from bringing causes of action that belong to their investors as such, as contrasted with claims that belong directly to those three companies for whom Scholes is the appointed representative.
To the extent that the orders tendered to Judge Alesia for his signature purport to authorize suit on behalf of the investors, those orders are at odds with the fundamental command of Article III.
It is therefore extraordinarily troubling to find Scholes' counsel invoking authorities from the bankruptcy area as though they stated any different principle. That is not so at all: Koch Refining v. Farmers Union Central Exchange, Inc., 831 F.2d 1339, 1342-44 (7th Cir. 1987) -- including all the passages quoted at length in Scholes' current memorandum -- clearly defines the bankruptcy trustee's role as a representative of the estate. Throughout that opinion all the references to the bankruptcy trustee representing the interests of the creditors of the debtor, as well as the debtor itself, are framed in terms of the trustee marshaling the debtor's property -- the debtor's claims. Though a bankruptcy trustee is given statutory power (something that is not present here) to represent the interests of creditors generally as well as the debtor itself, even in that respect the trustee's power is to harvest the property belonging to the estate and not to those parties (whether creditors or others) who may ultimately gain from the distribution of that harvest.
Indeed, that could not be more plainly stated than in a portion of Koch Refining, 831 F.2d at 1348 (citations omitted) that Scholes has not chosen to quote:
It is axiomatic that the trustee has the right to bring any action in which the debtor has an interest, including actions against the debtor's officers and directors for breach of duty or misconduct. In that capacity, the trustee acts to benefit the debtor's estate, which ultimately will benefit the debtor's creditors upon distribution. He also has creditor status under section 544 to bring suits for the benefit of the estate and ultimately of the creditors.
At best Scholes' posture vis-a-vis the defrauded investors approaches, though it does not reach, the status just described -- for there is no statute that gives Scholes "investor status" as to the receivership entities. What he does have, as already stated, is the right expressed in the first two sentences quoted from Koch Refining. That is equally true of the Illinois case invoked by Scholes, Holland v. Arthur Andersen & Co., 127 Ill. App. 3d 854, 862, 469 N.E.2d 419, 424, 82 Ill. Dec. 885 (1st Dist. 1984) ("We do agree that a liquidation trustee may only pursue those claims which belong to the estate of the debtor corporation"). And no different conclusion is called for by the decision in SIPC v. Vigman, 908 F.2d 1461, 1990 U.S. App. LEXIS 13019 (9th Cir.), which Scholes' counsel have attached to their current memorandum. Vigman speaks entirely to the same effect.
In short, Caplin v. Marine Midland Grace Trust Co. of New York, 406 U.S. 416, 429-34, 32 L. Ed. 2d 195, 92 S. Ct. 1678 (1972) remains impeccable authority for the proposition that a receiver or like surrogate cannot pursue claims that belong, not to the receivership estate as such, but rather to those who may have an ultimate derivative interest in the estate. Neither Scholes' counsel nor this Court may properly engage in a divination of entrails to predict how Caplin might fare if it were tendered to today's Supreme Court -- as a matter of principled jurisprudence, an unreversed Supreme Court decision that has not been undercut by later case law from that Court binds all of us.
With that having been said, it is time now to turn to the Complaint, at all times focusing on the just-expressed distinction that Scholes seeks to blur but that this Court will not. Fraud on investors that damages those investors is for those investors to pursue -- not the receiver. By contrast, fraud on the receivership entity that operates to its damage is for the receiver to pursue (and to the extent that investors as the holders of equity interests in the entity may ultimately benefit from such pursuit, that does not alter the proposition that the receiver is the proper party to enforce the claim). And as stated earlier, to the extent that the orders that appointed Scholes as receiver have purported to confer power on him to sue directly on behalf of investors, rather than in accordance with the just-stated principles, those orders exceed the power of the judiciary and will not be enforced in this action.
All the schemes described in Complaint paras. 8-17 (the "D & S Scheme"), 19-27 ("AT Systems") and 29-36 ("AT Service") continue to be framed in terms of alleged fraud on the investors, as was true in the original Complaint. But in the new pleading, Complaint para. 18 (alleged as to the D & S Scheme) now says:
18. As further alleged below, these misrepresentations and omissions by Schroeder and Douglas were not in the furtherance of the interests or for the benefit of the receivership entities, but solely in their own interests as part of a scheme and conspiracy by Schroeder, Douglas and others to loot the receivership entities and to otherwise act to the detriment of the receivership entities.
And there is a corresponding allegation in Complaint para. 28 as to AT Systems and Complaint para. 37 as to AT Service. Then the conduct that assertedly affected the entities rather than the investors is described in Complaint para. 38:
38. After the receivership entities received the monies the investors were fraudulently induced to invest in D & S and AT Systems, Douglas, Schroeder and others misappropriated the monies or their proceeds for their own benefit, as they had intended to do.