Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-00051-L-CAB

Document 4

Filed 01/17/2008

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1 ELIZABETH S. BALFOUR, Cal. Bar No. 213994 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership 2 Including Professional Corporations 3 12275 El Camino Real, Suite 200 San Diego, California 92130-2006 4 Telephone: 858-720-8900 Facsimile: 858-509-3691 5 [email protected] 6 Attorneys for Defendants Winex Investments, LLC, William Krusheski, John Sullivan, 7 Robert B. Hydeman, and Emilio Pineda 8 9 10 11 JIM COLLINS and MARYANN 12 COLLINS, 13 14 v. Plaintiffs, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Case No. 08 CV 0051 L CAB AMENDED NOTICE OF DEFENDANTS' MOTION TO DISMISS THE FIRST, SECOND, THIRD, FOURTH, AND FIFTH CAUSES OF ACTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)6; AND MOTION TO STRIKE LANGUAGE IN PARAGRAPH 7 PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(f). Date: April 7, 2008 Time: 10:30 a.m. Ctrm: 14 Honorable James Lorenz Complaint Filed: December 5, 2007 Complaint Served: December 10, 2007 Complaint Removed: January 9, 2008

15 WINEX INVESTMENTS, LLC, a 16 Wyoming limited liability company, WILLIAM KRUSHESKI, an 17 individual, JOHN SULLIVAN, an individual, ROBERT B. 18 HYDEMAN, an individual, EMILIO PINEDA, an individual, DOES 1 19 through 100, inclusive, 20 21 22 23 24 25 26 27 28
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Defendants.

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AMENDED NOTICE OF MOTION TO DISMISS 08 CV 0051 L CAB

Case 3:08-cv-00051-L-CAB

Document 4

Filed 01/17/2008

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NOTICE IS HEREBY GIVEN that on April 7, 2008 at 10:30 a.m. or as

2 soon thereafter as counsel may be heard, in Courtroom 14 of the above-entitled 3 court, located at 940 Front Street, San Diego, CA 92101, Defendants Winex 4 Investments, LLC, William Krusheski, Emilio Pineda, John Sullivan, and Robert B. 5 Hydeman ("Defendants") will move, and hereby do move, to dismiss the first, 6 second, third, fourth, and fifth claims for failure to state a claim upon which relief 7 can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), and to strike 8 false allegations in paragraph 7 of the Complaint, on the following grounds: 9 (1) Plaintiffs have failed to allege a violation of the federal securities

10 laws under Rule 9(b) of the Federal Rules of Civil Procedure and the Private 11 Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. § § 78u-4, 78u-5; 12 (2) Plaintiffs have failed to identify which provisions of the California 13 Corporate Securities Law Defendants have violated and have failed to adequately 14 allege a violation of the "market manipulation" provisions of California law; 15 (3) Plaintiffs' claims for intentional misrepresentation, negligent

16 misrepresentation, and breach of fiduciary duty fail to state a claim for relief; and 17 (4) Plaintiffs' allegations regarding the state of residence of Robert B.

18 Hydeman are false and misleading and should be stricken. 19 This Motion is based on this Notice of Motion, the accompanying

20 Memorandum of Points and Authorities, and all pleadings and papers on file herein, 21 and upon such oral argument as may be presented at hearing on the Motion. 22 DATED: January 17, 2008 23 24 25 26 27 28
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

By

/s/Elizabeth Balfour Attorneys for Defendants Winex Investments, LLC, William Krusheski, John Sullivan, Robert B. Hydeman, Emilio Pineda e-mail: [email protected] -2-

AMENDED NOTICE OF MOTION TO DISMISS 08 CV 0051 L CAB