against a stock exchange for a failure on the part of the exchange to enforce these margin requirements, including violations of 12 C.F.R. §§ 220.1 et seq., also known as Regulation T. Walck, 687 F.2d at 788-89. Mr. Ferreri cannot, therefore, assert a claim against the Exchange under section 7.
Count III of plaintiff's complaint also asserts claims under rules 8c-1 and 15c3-1. Section 8 and its accompanying rule, rule 8c-1, govern the hypothecation of customers' securities by brokers and dealers. There is no allegation in plaintiff's complaint that the Exchange acted as either a broker or dealer. Indeed, plaintiff himself acknowledges that "defendant is registered with the SEC as a National Securities Exchange and functions as a self regulatory organization (SRO) . . . ." Plaintiff's Complaint para. 24. Sections of the securities laws, such as section 8, which govern the conduct of brokers and dealers, are inapplicable in the absence of any allegation or evidence that the person or persons sought to be charged acted as either brokers or dealers. See Mid-Carolina Oil, Inc. v. Klippel, 526 F. Supp. 694, 696 (D.S.C. 1981), aff'd without op., 673 F.2d 1313 (4th Cir. 1982), cert. denied, 457 U.S. 1107, 73 L. Ed. 2d 1315, 102 S. Ct. 2906 (1982). Plaintiff cannot then assert a cause of action against the Exchange under section 8 or its accompanying rule.
Plaintiff is similarly unable to assert a claim against the Exchange under section 15 or its accompanying rule, rule 15c3-1. Section 15 provides generally for the registration and regulation of brokers and dealers, and rule 15c3-1 sets forth the net capital rules for those same brokers and dealers. Again, plaintiff's complaint contains no allegation that the Exchange acted as either a broker or a dealer in its interaction with Mr. Ferreri. Count III of plaintiff's complaint is therefore dismissed for failure to state a claim upon which relief can be granted.
In Count IV of his complaint, Mr. Ferreri seeks to hold the Exchange liable under section 20 of the Exchange Act. Plaintiff asserts that the Exchange "failed in its public duty to act as a controlling person notwithstanding its far reaching self regulatory authority and operational facilities at its disposal." Plaintiff's Complaint para. 92. There is no private right of action against a stock exchange under section 20. Baty v. Pressman, Frohlich & Frost, Inc., 471 F. Supp. 390 (S.D.N.Y. 1979); McLaughlin v. Campbell, 410 F. Supp. 1321, 1325 (D.Mass. 1976); Carr v. New York Stock Exchange, 414 F. Supp. 1292, 1295 (N.D.Cal. 1976). Plaintiff, therefore, has no claim under section 20, and Count IV of his complaint is dismissed.
Plaintiff's final allegation under the federal securities laws is contained in Count V of his Complaint, and asserts claims under rules 10b-5 and 10b-16 of section 10(b) of the Exchange Act. In order to bring a suit under section 10(b) the plaintiff must have been either the purchaser or seller of securities in connection with the allegedly fraudulent scheme. Landy v. Federal Deposit Insurance Corporation, 486 F.2d 139 (3d Cir. 1973); cert. denied, 416 U.S. 960, 40 L. Ed. 2d 312, 94 S. Ct. 1979 (1974). Defendant argues that plaintiff's claims under section 10(b) ought properly to be dismissed because of this court's prior ruling in an earlier case filed by Mr. Ferreri. See Ferreri, 661 F. Supp. at 1188. In that earlier case, I determined as an alternative holding that Mr. Ferreri was not a purchaser or seller of the stock options that Mr. Mainardi traded for the partnership in that suit, and that plaintiff could therefore not assert a claim under section 10(b). Id. at 1188 n. 5. I cannot now, on the basis of this record, say that this case involves the same sales or the same securities or transactions, and that my earlier ruling that Mr. Ferreri was not a purchaser or seller of securities in connection with the allegedly fraudulent scheme in that prior case is controlling here. Discovery shall proceed in accordance with the scheduling order previously entered, and the Exchange may renew these contentions following the completion of discovery. With respect to defendant's additional contentions that plaintiff has failed to allege sufficient facts to establish a claim under section 10(b), plaintiff's pro se status affords him additional leeway in his pleadings, and only the conclusion of discovery can reveal whether or not plaintiff will be able to support these contentions. Accordingly, Count V of plaintiff's complaint will not be dismissed.
The State Law Claims
In addition to plaintiff's securities law claims, plaintiff's complaint asserts causes of action for what appears to be misrepresentation and fraud.
As there is no diversity of citizenship present here, I will exercise jurisdiction over these claims pursuant to the doctrine of pendent jurisdiction.
Again, given the liberal pleading requirements of the Federal Rules of Civil Procedure, and the particular leeway given to pro se complaints, I cannot, without the benefit of discovery and a fuller record, determine the merit of plaintiff's state law claims. Plaintiff's state law claims against the Exchange will not be dismissed.
In sum, Counts II, III, and IV of plaintiff's complaint will be dismissed as to the Philadelphia Stock Exchange. The remainder of plaintiff's claims against the Exchange will not be dismissed. Defendant Philadelphia Stock Exchange may renew its contentions as to these counts following the completion of discovery.
AND NOW, this 2nd, day of August, 1988, upon consideration of the Motion to Dismiss of defendant Philadelphia Stock Exchange, the response of plaintiff thereto, and defendant's reply, it is hereby ORDERED that defendant's motion is GRANTED in part and DENIED in part.
Counts II, III, and IV of plaintiff's complaint are dismissed as to defendant Philadelphia Stock Exchange. The remainder of plaintiff's complaint is not dismissed. The scheduling order previously entered on June 20, 1988 shall apply.