Brim et al v. Vincent et al

Filing 34

ORDER granting 25 , 28 Motion to Dismiss. The hearing scheduled for September 30, 2011, is VACATED. Defendants' Motion to Dismiss is GRANTED WITHOUT LEAVE TO AMEND. As this Order effectively resolves this action in its entirety, the Clerk shall close this file upon entry of the ensuing judgment. Signed by Judge Edward J. Davila on 9/27/2011. (ejdlc1, COURT STAFF) (Filed on 9/27/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION
CASE NO. 5:10-cv-05341 EJD

MICHAEL BRIM, et. al.,

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ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

Plaintiff(s),
For the Northern District of California

United States District Court

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v.
JON VINCENT, et. al.,
[Docket Item No(s). 25, 28]

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Defendant(s).
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Within the above-entitled action, Defendants Jon Vincent and Keepcash.com (“Defendants”)

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move to dismiss the Second Amended Complaint (“SAC”) filed by Plaintiffs Michael Brim and BF

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Ads (“Plaintiffs”) pursuant to Federal Rule of Civil Procedure 12(b)(6). See Docket Item Nos. 25,

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28. Plaintiffs concede the defects in the SAC in a Statement of Non-Opposition (see Docket Item

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No. 32), notably filed after the time allowed for the briefing of this motion. See Civ. L. R. 7-3(b).

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Finding merit in Defendants’ arguments and contentions, the motion to dismiss will be granted.

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Defendants request the court allow them leave to amend the SAC in order to allege a new

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theory of liability. Having reviewed this action in its entirety, however, the court has determined the

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amendment proposed by Plaintiffs would not cure the deficiencies in their pleadings, which mainly

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arise from a failure to provide necessary facts rather than a cognizable legal theory. Moreover, the

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court notes that Plaintiffs have had two previous opportunities to plead sufficient claims but have

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failed to do so. Under these circumstances, the court finds that allowing further amendment would

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be futile since Plaintiff has already twice amended the original complaint without success.
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CASE NO. 5:10-cv-05341 EJD
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (EJDLC1)

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Accordingly, leave to amend will not allowed. See Allen v. City of Beverly Hills, 911 F.2d 367,

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373-74 (9th Cir. 1990).

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ORDER

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Based on the foregoing:

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1.

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The hearing scheduled for September 30, 2011, is VACATED pursuant to Civil Local

Rule 7-1(b);
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Defendants’ Motion to Dismiss is GRANTED WITHOUT LEAVE TO AMEND for

the reasons stated above; and
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As this Order effectively resolves this action in its entirety, the Clerk shall close this

file upon entry of the ensuing judgment.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: September 27, 2011
EDWARD J. DAVILA
United States District Judge

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CASE NO. 5:10-cv-05341 EJD
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (EJDLC1)