The opinion of the court was delivered by: Stewart, District Judge:
By Memorandum Decision dated January 8, 1990 ("January 8th
Decision"), this court dismissed the second, third, fourth and
fifth causes of action alleged in defendants/third-party
plaintiffs' Arthur Andersen & Co. (USA), Arthur Andersen & Co.
(Republic of Ireland) and Arthur Andersen & Co. (United
Kingdom) (hereinafter collectively "AA") amended third-party
complaint. In addition, we dismissed claims for indemnity in
the first cause of action for violations of the Racketeer
Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962(a),
(b) and (c), the federal securities laws and common
law fraud, as well as claims for contribution as to RICO and
the federal securities laws. Finally, we dismissed third-party
defendant Ronald J. Henderson from the action for lack of
AA now moves pursuant to Rules 15(a) and 54(b) of the Federal
Rules of Civil Procedure, and Rule 3(j) of the Civil Rules for
the United States District Court for the Southern District of
New York ("Local Rule 3(j)") for the following relief: (1)
leave to replead in a second amended complaint their claim for
contribution under the federal securities laws; (2) leave to
replead their cause of action alleging that the third-party
defendants aided and abetted one or more violations of RICO;
(3) entry of final judgment as to the second and fifth causes
of action (the RICO and negligence causes of action), all
causes of action against third-party defendant Ronald J.
Henderson, and that portion of their first cause of action
seeking contribution under RICO; and, if leave to replead is
denied, that portion of the first cause of action seeking
contribution under the federal securities laws.
The factual background to this action has been recited in
previous decisions and will not be reiterated. Familiarity with
the relevant background is assumed.*fn1
We begin with a brief review of the principles relevant to AA's
motion to replead. The Supreme Court has stated with regard to
In the absence of any apparent or declared reason — such
as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc. — the leave sought should, as the rules require, be
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9
L.Ed.2d 222 (1962).
The Second Circuit has stated that a district court may deny
leave to replead when the proposed amendments would be futile.
See Albany Insurance Company v. Esses, 831 F.2d 41, 45 (2d
Cir. 1987), overruled on other grouds, United States v.
Indelicato, 865 F.2d 1370 (2d Cir. 1989). However, complaints
dismissed for failure to plead fraud with requisite
particularity pursuant to Fed.R.Civ.P.9(b) are generally
dismissed with leave to amend, particularly if the plaintiff
had no opportunity to plead fraud with greater specificity.
See Luce v. Edelstein, 802 F.2d 49, 56 (2d Cir. 1986).
In our January 8th Decision we dismissed AA's second cause of
action alleging aiding and abetting of RICO on two grounds: (1)
that the third-party plaintiffs had no standing to bring their
aiding and abetting RICO claim; and, (2) that the third-party
complaint failed to allege sufficient facts as to how each
defendant aided or abetted the predicate acts alleged to
have been committed by DeLorean. January 8th Decision at
40-41.*fn2 Although AA makes no express request for leave to
replead the aiding and abetting RICO claim, it apparently seeks
leave to amend the first amended complaint on the basis that we
based our dismissal on a "curable pleading deficiency."
Memorandum in Support of Third-Party Plaintiffs' Motion, etc.
("AA Brief") at 11. However, the second cause of action was not
only dismissed for pleading deficiencies, but on substantive
grounds as well — AA's lack of standing to assert the aiding
and abetting RICO claim.*fn3 Therefore, since amendment
would be futile, we deny leave to amend the complaint to
replead the aiding and abetting RICO cause of action.
Contribution under federal securities laws
In our January 8th Decision we also dismissed AA's claim for
contribution as to violations of the federal securities laws
alleged in the main complaint. January 8th Decision at 16-22.
The right of contribution for violations of the federal
securities laws exists among "joint tortfeasors." See Greene
v. Emersons, Ltd., 102 F.R.D. 33, 36 (S.D.N.Y. 1983), aff'd
sub nom. Kenneth Leventhal & Co. v. Joyner Wholesale Co.,
736 F.2d 29 (2d Cir. 1984). There are varying definitions of "joint
tortfeasor" articulated by various lower courts in this
context. The majority view, at least among the district courts
in this circuit, appears to be that contribution among "joint
tortfeasors" under the federal securities laws is limited to
joint participants in the fraud alleged by plaintiff. Cf.
Connecticut National Bank v. Reliance Insurance Co.,
704 F. Supp. 506, 509 (S.D.N.Y. 1989). Other courts have held that
contribution among "joint tortfeasors" under the federal
securities laws is available among independent, concurrent
tortfeasors. See, e.g., Marrero v. Abraham, 473 F. Supp. 1271,
1277-78 (E.D.La. 1979). However, ...