Miller v. Facebook, Inc. et al

Filing 51

JOINT CASE MANAGEMENT STATEMENT filed by Daniel M. Miller. (Hancock, Brian) (Filed on 5/20/2010)

Miller v. Facebook, Inc. et al

Doc. 51

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FLEMING & PHILLIPS LLP ROBERT D. PHILLIPS, JR. (SBN 82639) THOMAS A. EVANS (SBN 202841) EUGENIA S. CHERN (SBN 215092) 1340 Treat Boulevard, Suite 630 Walnut Creek, CA 94597-7581 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Performance Enhancers LLC and Ideal Brands Limited Partnership UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NORTHERN CALIFORNIA DIAGNOSTIC LABORATORIES, INC., MICHAEL SPENCER-SMITH, Plaintiffs, v. NEUTRONICS ENTERPRISES, INC., KEITH A. FINKENBINER, PERFORMANCE ENHANCERS, L.L.C., PERFORMANCE ENHANCERS, INC., GARY J. BETHUREM, WALTER WIGGINS, WILLIAM WOZNYJ, WALKINGTON, INC., an Ohio corporation, IDEAL BRANDS LIMITED PARTNERSHIP, RICHARD HEALEY, JAMES A. RUTLEDGE, RICHARD RIDER, KEITH TERRY, Individually and doing business as TERRY COMPONENTS, DOES 1 through 10, and ROES 1 through 10, Inclusive, Defendants. _______________________________/ TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 31, 2003, at 2:00 p.m. or as soon thereafter as counsel may be heard before the Honorable Vaughn R. Walker, United States District Judge, in Courtroom 6 of the above-entitled Court, located at 450 Golden Gate Avenue, San Francisco, California, defendants Performance Enhancers LLC and Ideal Brands Limited Partnership will and hereby do move to dismiss plaintiff's Fourth Cause Case No. C-03-1563 VRW DEFENDANTS PERFORMANCE ENH ANCE RS LLC, AND IDEAL BRANDS LIMITED PARTNERSHIP'S NOTICE OF MOTION AND MOTION TO DISMISS [Rule 12(b)(6)] DATE: TIME: CTRM: July 31, 2003 2:00 p.m. 6

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of Action as alleged in the Complaint for failure to state a claim upon which relief can be granted. This Motion is based upon Rules of Civil Procedure 12(b)(6), this Notice of Motion and Motion and the attached Memorandum of Points and Authorities, the papers, pleadings and other documents on file in this action, and such other and further oral or documentary evidence as may be presented at or before the hearing.

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Defendants Performance Enhancers, LLC ("PELLC") and Ideal Brands Limited Partnership ("Ideal") move to dismiss plaintiffs' fourth cause of action for fraud because it fails to allege fraud with particularity. Even though plaintiffs have already amended their fraud allegations once, they still do not identify what role, if any, plaintiffs contend that PELLC and Ideal played in the alleged fraud. Instead plaintiffs allege a series of misrepresentations, which they attribute to ten defendants, without attributing any specific statement to any specific defendant. Indeed, plaintiffs do not even allege who made the actual alleged representations, as they allege that each defendant made the representations "individually and/or through their agents and authorized representatives." First Amended Complaint, ¶ 47. The Complaint does not identify the "agents and authorized representatives." The Complaint does not provide Ideal or PELLC with sufficient information to understand why they have been included in plaintiffs' fraud claim. Neither Ideal nor PELLC can determine whether plaintiffs believe that Ideal or PELLC made fraudulent representations, or that plaintiffs seek to impute statements made by other defendants to Ideal and PELLC. If plaintiffs believe an individual made statements as an agent or representative of Ideal or PELLC, they have not identified who that individual is, so defendants cannot investigate what that person said, or whether that person was actually authorized to speak on Ideal's or PELLC's behalf. In short, Ideal and PELLC do not have sufficient notice of the basis of plaintiffs' claims to prepare a response. The particularity requirement of Rule 9(b) prohibits this sort of vague pleading for the protection of potential defendants. Even spurious fraud allegations may have an immediate impact on a defendant's business and reputation. Rule 9(b) therefore requires specific notice of the alleged role of each separate defendant in an alleged fraud, so each defendant can respond to the specific factual allegations. Plaintiffs' collective pleading approach denies every defendant the ability to

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prepare a response. The Complaint does not identify which party actually made representations, nor does it identify the "agents and authorized representatives" who may have made representations on some defendants' behalves. PELLC and Ideal move to dismiss this cause of action on the ground that it fails to allege fraud with specificity as required under Rule 9(b). Plaintiffs have not specified whether PELLC or Ideal have made any representations, nor have they identified exactly who made the alleged representations, nor have they explained why PELLC or Ideal would be liable for those representations. Plaintiffs cannot state a fraud claim by simply naming multiple defendants, and stating that all of them either made the same representations or were acting as each others' agents. Although they have already amended these allegations once, plaintiffs have yet to specifically allege which defendant made each purported representation, most likely because plaintiffs are simply unable to do so. Accordingly, the Fourth Cause of Action should be dismissed. POINTS AND AUTHORITIES 1. Grounds For Motion To Dismiss. A complaint should be dismissed under Rule 12(b)(6) where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 53334 (9th Cir. 1984). Moreover, a complaint or any claim should be dismissed without leave to amend where the deficiencies of the complaint cannot possibly be cured by amendment. Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). Failure to plead fraud with particularity is grounds for dismissal. See Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 796 (9th Cir. 1996) (affirming dismissal of a fraud claim because it did not allege with particularity the time, place, or nature of the allegedly fraudulent conduct). Since plaintiff is unable to allege with particularity

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who committed each fraudulent act asserted, plaintiff's fraud claim should be dismissed. 2. Plaintiffs Have Not Pleaded Their Fraud Claim Against Ideal And PELLC With Particularity. Federal Rule of Civil Procedure 9(b) mandates that all averments of fraud be pleaded "with particularity." See Desaigoudar v. Meyercord, 223 F.3d 1020, 1022-1023 (9th Cir. 2000). Plaintiffs must specify the time, place, and nature of the allegedly fraudulent conduct, and the identities of the parties to the alleged fraud. See Miscellaneous Serv. Workers, Drivers, & Helpers, Teamsters Local #427 v. Philco-Ford Corp., 661 F.2d 776, 782 (9th Cir. 1981); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)("Averments of fraud must be accompanied by `the who, what, when, where, and how' of the misconduct charged."). The particularity requirement provides defendants "notice of the particular conduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong. " Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). This need for specificity is critical in fraud actions to provide the defendant the opportunity to minimize the damage to its reputation that may result from the mere allegation of fraud. Id.

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Plaintiffs' sweeping allegations that every defendant and/or their agents and authorized representatives "individually and/or through their agents and authorized representatives, made fraudulent representations" fall far short of the particularity requirements under Rule 9(b). Allegations that lump every defendant into one group deprive each defendant of sufficient notice to respond to the fraud claim, because no single defendant can identify and respond to the specific facts on which plaintiffs base their claim. Where plaintiffs seek to hold multiple defendants liable for fraud, the complaint should "inform each defendant of the nature of his participation in the fraud." DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir. 1987). This requires identification of the persons or entities who actually made the representations, and an explanation of why the other defendants should be liable for those

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representations. See Silicon Knights, Inc. v. Crystal Dynamics, Inc., 983 F.Supp. 1303,1315 (N. D. Cal. 1997) ( "[s]ince fraud must be alleged in particularity, a general allegation that all Individual Defendants directed that the alleged fraudulent statements be made is insufficient to assert liability upon persons who did not make the statements.") Complaints that "lump together" defendants without identifying who actually made the representations, and without any detail regarding each defendants' involvement in the alleged fraudulent activity fail to satisfy Rule 9(b). Vicom v. Harbridge Merchant Svcs., 20 F. 3d 771, 777-78 (7th Cir. 1994). A complaint that alleges representations by "agents," without identifying those agents, is similarly vague, and subject to dismissal for the same reason. Kelly v. Intelligenetics, Inc., 1995 WL 232387, *5 (N.D. Cal. 1995). Upon reading the Complaint, PELLC and Ideal have no way of knowing what they, as opposed to the eight other alleged participants, are accused of doing. Plaintiffs' second try at alleging fraud claims still offers no explanation of what each defendant, including PELLC and Ideal, are alleged to have done. While the complaint admits by implication that not every defendant made direct representations, because at least some of the defendants may have acted through agents or representatives, it does not identify who actually made representations to the plaintiffs. PELLC and Ideal are left to guess whether they are accused of acting directly, as agents, or whether plaintiffs claim they acted through some unidentified agent or representative. Assuming PELLC and Ideal have been accused of acting through someone else, they still have no hint as to whose conduct plaintiffs seeks to impute to them, as plaintiffs do not identify who acted as an agent and/or representative.

CONCLUSION Plaintiffs have failed to adequately inform PELLC or Ideal of the nature of their alleged participation in the various acts of fraud. Defendants are entitled to a specific explanation of what plaintiffs believe to be their involvement in any fraud. This

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information is critical to their defense of claims, so they can mitigate the harm and business disruption that may arise from the mere existence of plaintiffs' claims. Since plaintiffs have not and cannot meet the requirements under Rule 9(b), plaintiffs' Fourth Cause of Action for fraud as to PELLC and Ideal should be dismissed.

FLEMING & PHILLIPS LLP

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I:\Clients\Ideal Brands\NCDL\Pleading\Motion to Dismiss -PELLC.wpd

/s/ THOMAS A. EVANS

Attorneys for Defendants Performance Enhancers, L.L.C. and Ideal Brands Limited Partnership

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