Raifman et al v. Wachovia Securities, LLC et al

Filing 127

ORDER by Judge ARMSTRONG denying 74 Motion to Dismiss (lrc, COURT STAFF) (Filed on 3/11/2013)

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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 GREGORY R. RAIFMAN and SUSAN Case No: C 11-02885 SBA 8 RAIFMAN, husband and wife, individually and on behalf of their marital community and 9 as Trustees of the RAIFMAN FAMILY ORDER DENYING MOTION TO DISMISS REVOCABLE INTERVIVOS TRUST and as 10 beneficiaries of the PALLADIAN TRUST; Docket 74 GEKKO HOLDINGS, LLC, and HELICON 11 INVESTMENTS, LTD., Plaintiffs, 12 vs. 13 14 WACHOVIA SECURITIES, LLC, N/K/A WELLS FARGO ADVISORS, LLC, 15 Defendant. 16 17 The parties are presently before the Court on Defendant's motion to dismiss the first 18 amended complaint ("FAC") under Rule 12(b)(6) of the Federal Rules of Civil Procedure. 19 Dkt. 74. Plaintiffs oppose the motion. Dkt. 85. Having read and considered the papers 20 filed in connection with this matter and being fully informed, the Court hereby DENIES 21 Defendant's motion, for the reasons stated below. The Court, in its discretion, finds this 22 matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. 23 Civ. L.R. 7-1(b). 24 I. DISCUSSION 25 Defendant moves to dismiss all seven claims alleged in the FAC on the ground that 26 each of the claims is barred by the applicable statutes of limitations and on the ground that 27 the FAC fails to allege sufficient facts to state a claim upon which relief can be granted. 28 Dkt. 74. According to Defendant, the substantive law of Virginia applies to the claims 1 alleged in the FAC. Id. In response, Plaintiffs argue, among other things, that Defendant's 2 motion should be treated as a motion for summary judgment, the substantive law of 3 California law applies to the claims alleged in the FAC, and that the FAC pleads sufficient 4 facts to state cognizable claims under California law. Dkt. 85. 5 6 7 8 9 10 The instant motion does not comply with the meet and confer requirement set forth in this Court's Standing Orders, which provides: All parties shall meet and confer before filing any motion before the Court. The motion and any other non-stipulated request shall include a certification, which may be included in the body of the document, that the parties have complied with the meet and confer requirement. The Court may disregard any papers submitted that do not comply with this rule. See Civil Standing Orders ΒΆ 5. 11 The parties have failed to comply with this requirement, which is essential to the 12 parties' representation that there is a dispute which requires the Court's resolution. Until 13 such time as the parties have met and conferred to discuss the issues, it is premature to 14 conclude that there exists a dispute necessitating the Court's intervention. The meet and 15 confer requirement is essential to conserving the limited time and resources of the Court 16 and the parties by obviating the filing of unnecessary motions. Had the parties met and 17 conferred as required, they may have been able to resolve some or all of the various issues 18 presented in Defendant's motion. "The purpose of the [meet and confer] requirement is to 19 encourage settlement, resolve disputes which need not involve the Court, and avoid 20 unnecessary litigation, thus saving the parties', the Court's, and the taxpayers' limited time, 21 money, and resources." See Wong v. Astrue, 2008 WL 4167507, at *2 (N.D. Cal. 2008) 22 (Armstrong, J.). 23 Indeed, after the instant motion was filed, Plaintiffs filed a motion for leave to file a 24 second amended complaint ("SAC"). Dkt. 103. The proposed SAC eliminates five of the 25 seven claims alleged in the FAC. Id. If the parties had met and conferred prior to the filing 26 of the instant motion, they could have saved time, money and aggravation by stipulating to 27 the filing of a SAC that omitted these claims. See Wong, 2008 WL 4167507, at *2 (noting 28 that "it is the rare motion to dismiss which is granted without leave to amend. Thus, -2- 1 meeting and conferring can be an invaluable method for streamlining a complaint and the 2 issues for litigation, without resort to the Court's processes, saving the parties' time, money, 3 and aggravation."). 4 Accordingly, because the parties did not meet and confer on the issues presented by 5 the instant motion, Defendant's motion to dismiss is DENIED. It is incumbent upon 6 litigants before this Court to familiarize themselves not only with the Local Rules, but also 7 with this Court's Standing Orders. There is simply no excuse for the parties' failure to 8 comply with the meet and confer requirement set forth in this Court's Standing Orders. The 9 Court also notes that there is no excuse for Plaintiffs' wholly improper attempt to 10 circumvent the page limits on briefs set forth in the Local Rules and this Court's Standing 11 Orders by filing a 40-page "table" that "summarizes" the facts in which Plaintiffs assert 12 support their claims for relief. This Court's Standing Orders expressly provide that any 13 brief filed "in an improper manner or form, shall not be received or considered by the 14 Court." Civil Standing Orders at 4. The parties are warned that the Court will strike any 15 future documents filed with the Court that do not comply with this Court's Standing Orders 16 or the Local Rules. The parties are also warned that any future transgressions of the Court's 17 Standing Orders or the Local Rules may result in the imposition of sanctions. See id. 18 II. CONCLUSION 19 For the reasons stated above, IT IS HEREBY ORDERED THAT: 20 1. Defendant's motion to dismiss is DENIED. 21 2. The parties shall meet and confer in person or by telephone prior to filing any 22 future motions. The parties shall meet and confer in good faith in an attempt to resolve or 23 narrow the issues presented in such a motion. The parties shall certify in writing that they 24 have done so, as required by this Court's Standing Orders. 25 3. 26 IT IS SO ORDERED. 27 This order terminates Docket 74. Dated: 3/11/13 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 28 -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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