Free Motion to Dismiss - District Court of California - California

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

Document 14

Filed 04/23/2008

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1 ELIZABETH S. BALFOUR, Cal. Bar No. 213994 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 2 A Limited Liability Partnership 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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Case No. 08 CV 0051 L CAB NOTICE OF DEFENDANTS' MOTION TO DISMISS THE AMENDED COMPLAINT AS TO DEFENDANT JOHN SULLIVAN PURSUANT TO 11 U.S.C. § 727; MOTION TO DISMISS THE FIRST, SECOND, THIRD, FOURTH, AND FIFTH CAUSES OF ACTION OF THE AMENDED COMPLAINT AS TO DEFENDANTS WINEX INVESTMENTS, LLC, WILLIAM KRUSHESKI, AND CRAIG PINEDO, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)6; AND MOTION TO DISMISS THE AMENDED COMPLAINT AS TO DEFENDANT ROBERT HYDEMAN PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)6. Date: June 30, 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 Amended Complaint Filed: April 3, 2008 -1W02-WEST:DEL\400804826.1

10 JIM COLLINS and MARYANN COLLINS, 11 Plaintiffs, 12 v. 13 14 WINEX INVESTMENTS, LLC, a Wyoming limited liability company, 15 WILLIAM KRUSHESKI, an individual, JOHN SULLIVAN, an 16 individual, ROBERT B. HYDEMAN, an individual, EMILIO 17 PINEDA, an individual, DOES 1 through 100, inclusive, 18 Defendants. 19 20 21 22 23 24 25 26 27 28

NOTICE OF MOTION TO DISMISS CLAIMS IN AMENDED COMPLAINT 08 CV 0051 L CAB

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

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Filed 04/23/2008

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

2 as 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, as follows: 6 (1) to dismiss the Amended Complaint as to Defendant John Sullivan 7 on the grounds that Mr. Sullivan has received a discharge in bankruptcy pursuant to 8 11 U.S.C. § 727 and therefore Plaintiffs are not permitted to maintain these claims 9 against him; 10 (2) to dismiss the First (Intentional Misrepresentation), Second 11 (Negligent Misrepresentation), Third (Violation of Rule 10b-5 of the Securities and 12 Exchange Act of 1934), Fourth (Violation of California Corporations Code 13 § 25401), and Fifth (Breach of Fiduciary Duty) Causes of Action as to Winex 14 Investments, LLC, William Krusheski, and Emilio Pinedo pursuant to Federal Rule 15 of Civil Procedure 12(b)(6) on the grounds that: 16 (a) Plaintiffs have failed to allege a violation of the federal 17 securities laws under Rule 9(b) of the Federal Rules of Civil Procedure and the 18 Private Securities Litigation Reform Act of 1995 ("PSLRA"), 15 U.S.C. § § 78u-4, 19 78u-5; 20 22 24 (b) Plaintiffs have failed to allege a violation of California (c) Plaintiffs' claims for intentional misrepresentation, negligent (3) to Dismiss the Amended Complaint as to Defendant Robert 21 Corporations Code § 25401; and 23 misrepresentation, and breach of fiduciary duty fail to state a claim for relief; and 25 Hydeman pursuant to pursuant to Federal Rule of Civil Procedure 12(b)(6) because 26 the Amended Complaint does not contain any allegations regarding how Mr. 27 Hydeman engaged in any conduct that could state a claim for relief under any of the 28 causes of action asserted against him. -2W02-WEST:DEL\400804826.1

NOTICE OF MOTION TO DISMISS CLAIMS IN AMENDED COMPLAINT 08 CV 0051 L CAB

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

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Filed 04/23/2008

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This Motion is based on this Notice of Motion, the accompanying

2 Memorandum of Points and Authorities, the accompanying Request for Judicial 3 Notice, and all pleadings and papers on file herein, and upon such oral argument as 4 may be presented at hearing on the Motion. 5 6 DATED: April 23, 2008 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3W02-WEST:DEL\400804826.1

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]

NOTICE OF MOTION TO DISMISS CLAIMS IN AMENDED COMPLAINT 08 CV 0051 L CAB