Free Proposed Order - District Court of California - California

Case 3:08-cv-02705-JSW

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Filed 07/24/2008

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A limited liability partnership formed in the State of Delaware

James C. Martin (SBN 83719) [email protected] Mary J. Hackett (appearing pro hac vice) [email protected] Sharon L. Rusnak (appearing pro hac vice) [email protected] David. J. Bird (pro hac vice application pending) [email protected] REED SMITH LLP 435 Sixth Avenue Pittsburgh, PA 15219-1886 Telephone: (412) 288-3131 Facsimile: (412) 288-3063 David S. Reidy (SBN 225904) [email protected] REED SMITH LLP Two Embarcadero Center, Suite 2000 San Francisco, CA 94111-3922 Telephone: (415) 543-8700 Facsimile: (415) 391-8269 Attorneys for Defendants Bank of America, N.A. and Bank of America Corporation

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ELLEN STOODY-BROSER, An Individual, Individually And On Behalf Of All Others Similarly Situated, Plaintiff, v. BANK OF AMERICA, N.A. and BANK OF AMERICA CORPORATION, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08 2705 JSW [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT Date: Time: Place: October 31, 2008 9:00 a.m. Courtroom 2, 17th Floor

Compl. Filed: March 29, 2008 Trial Date: None Honorable Jeffrey S. White

Case 3:08-cv-02705-JSW

Document 17

Filed 07/24/2008

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A limited liability partnership formed in the State of Delaware

ORDER The Motion of Defendants Bank of America, N.A. and Bank of America Corporation ("Defendants") to Dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Motion") came on regularly for hearing before this Court on October 31, 2008. The parties were represented by their respective counsel of record. The Court having reviewed the Motion, as well as all pleadings filed in support of and in opposition to the Motion, and having considered the arguments raised by the parties at the hearing, and for good cause shown, IT IS HEREBY ORDERED AS FOLLOWS: 1. Plaintiff's Complaint asserts state law claims against Defendants on behalf of putative

classes of individuals, each of which Plaintiff concedes exceeds fifty individuals. As such, the Complaint asserts "covered class actions" as that term is defined by the Securities Litigation and Uniform Standards Act of 1998 ("SLUSA"). See 15 U.S.C. § 78bb(f)(5). The essence of Plaintiff's Complaint is that Defendants made untrue statements or omissions of a material fact in connection with the purchase or sale of covered securities, specifically, the purchase of affiliated mutual funds with monies contained in trusts administered by Defendants, and that Defendants used or employed manipulative or deceptive devices or contrivances in connection with the purchase or sale of those securities. The Complaint therefore asserts state law claims prohibited by the SLUSA. See 15 U.S.C. §§ 77p(b)(1)-(2); 78bb(f)(1). Accordingly, Plaintiff's claims are improper and must be dismissed. See Falkowski v. Imation Corp., 309 F.3d 1123, 1128 (9th Cir. 2002). 2. Plaintiff's Complaint fails to state a claim upon which relief may be granted against

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Defendants and, on that basis, Defendant's Motion is GRANTED. Fed. R. Civ. Proc. 12(b)(6). 3. The deficiencies of Plaintiff's Complaint cannot be cured by amendment and Plaintiff

therefore is denied leave to amend the Complaint. The Complaint is hereby dismissed. SO ORDERED: DATED: __________________ JEFFREY S. WHITE United States District Court

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