MILL BRIDGE V, LLC v. BENTON et al

Filing 25

ORDER THAT DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT IS GRANTED IN PART AND DENIED IN PART. SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 12/3/2009. 12/7/2009 ENTERED AND COPIES MAILED TO UNREPS AND E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MILL BRIDGE V, INC. as successor to VAN DER MOOLEN OPTIONS USA, LLC c/o VAN DER MOOLEN SPECIALISTS, LLC, Plaintiff, v. I. ISABELLE BENTON, BENTON PARTNERS II, LLP, JAMES KENKELEN, a transferee, and EILEEN WHITE, a transferee, Defendants.

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CIVIL ACTION

NO. 08-2806

ORDER AND NOW, this 3rd day of December, 2009, upon consideration of the Motion by Defendants I. Isabelle Benton and Benton Partners II, LLP to Dismiss the Second Amended Complaint (Docket No. 20), the Response of Plaintiff Mill Bridge V, Inc. (Docket No. 21), Defendants' Reply Brief (Docket No. 22), and Plaintiff's Sur-reply Brief (Docket No. 23), it is hereby ORDERED that the Motion is GRANTED IN PART and DENIED IN PART, as follows: 1. Defendants' Motion to Dismiss Plaintiff's cause of action under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5 (Count I) is DENIED. Plaintiff's claim under section 10(b) and Rule 10b-5, however, may only rest on the omissions and inferences of scienter deemed viable in this Court's accompanying Memorandum; Defendants' Motion to Dismiss Plaintiff's control person liability claim under 15 U.S.C. § 78t (Count II) is DENIED;

2.

3.

Defendants' Motion to Dismiss Plaintiff's cause of action under section 29(b) of the Securities Exchange Act, 15 U.S.C. § 78cc(b) (Count IV) is GRANTED; Defendants' Motion to Dismiss Plaintiff's cause of action under the Pennsylvania Securities Act, 70 Pa.C.S. § 1-401, 501 (Count III) is GRANTED and this claim is DISMISSED WITHOUT PREJUDICE.

4.

It is so ORDERED. BY THE COURT:

s/ Ronald L. Buckwalter RONALD L. BUCKWALTER, S.J.