NOTICE OF MOTION AND MOTION TO DISMISS AND, IN by yzc11728

VIEWS: 98 PAGES: 3

									                   1   LATHAM & WATKINS LLP
                         Paul H. Dawes (Bar No. 55191)
                   2   135 Commonwealth Drive
                       Menlo Park, California 94025
                   3   Telephone: (650) 328-4600
                       Facsimile: (650) 463-2600
                   4
                         Michele F. Kyrouz (Bar No. 168004)
                   5   505 Montgomery Street, Suite 2000
                       San Francisco, California 94111-2562
                   6   Telephone: (415) 391-0600
                       Facsimile: (415) 395-8095
                   7
                       Attorneys for Defendants
                   8

                   9
                                                       UNITED STATES DISTRICT COURT
               10
                                                  NORTHERN DISTRICT OF CALIFORNIA
               11

               12
                       PHYSICIAN EXECUTIVE BUSINESS                  CASE NO. C-04-4878 MMC ARB
               13      CORP. on Behalf of Itself and All Others
                       Similarly Situated,                           NOTICE OF MOTION AND MOTION TO
               14                                                    DISMISS AND, IN THE ALTERNATIVE, TO
                                         Plaintiffs,                 STRIKE; MEMORANDUM OF POINTS
               15                                                    AND AUTHORITIES IN SUPPORT
                                v.                                   THEREOF; [PROPOSED] ORDER
               16
                       XOMA LTD.; JOHN L. CASTELLO; and              Date:    April 8, 2005
               17      PATRICK J. SCANNON,                           Time:    9:00 A.M.
                                                                     Place:   19th floor, Courtroom 7
               18                        Defendants.
                                                                     Action Filed:    November 16, 2004
               19

               20

               21

               22

               23

               24

               25

               26

               27

               28
                       SF\504008.1                                                   Case Number: C-04-4878 MMC ARB
ATTORNEYS AT LAW
                        033478-0001                                      NOTICE OF MOTION AND MOTION TO DISMISS
 SAN FRANCISCO
                                                                              AND, IN THE ALTERNATIVE, TO STRIKE
                   1                   NOTICE IS HEREBY GIVEN that on April 8, 2005 at 9:00 a.m., defendants

                   2   XOMA Ltd., John L. Castello, and Patrick J. Scannon will and hereby do move this court to

                   3   dismiss, or in the alternative to strike portions of, plaintiff’s Complaint pursuant to Federal Rules

                   4   of Civil Procedure 12(b)(6), 9(b), and 12(f). Defendants’ motions are supported by the

                   5   accompanying memorandum of points and authorities, all papers, records and documents filed in

                   6   this action, and all matters of which the court may take judicial notice.

                   7                                         MOTION TO DISMISS

                   8                   Defendants XOMA Ltd., John L. Castello, and Patrick J. Scannon hereby move to

                   9   dismiss plaintiff’s Complaint for the following reasons:

               10           1. Plaintiff fails to plead its claim for common law fraud with the degree of specificity

               11      required under Federal Rule of Civil Procedure 9(b); and

               12           2. Pursuant to Federal Rule of Civil Procedure 12(b)(6) plaintiff fails to state a claim for

               13      relief. Plaintiff has not stated a claim for fraud under California law because plaintiff has not

               14      pleaded facts showing that defendants made a false statement, that defendants acted with the

               15      requisite scienter, that plaintiff actually relied upon a false or misleading statement, or that

               16      plaintiff suffered damages caused by the alleged fraud. Plaintiff also fails to state a claim for

               17      negligent misrepresentation under California law because plaintiff fails to plead facts showing

               18      that defendants made a false statement, that defendants lacked a reasonable basis for making any

               19      alleged statements, that plaintiff actually relied on a false or misleading statement, or that

               20      plaintiff suffered damages caused by the alleged misrepresentation.

               21                                            MOTION TO STRIKE

               22                      In the alternative, defendants XOMA Ltd., John L. Castello, and Patrick J.

               23      Scannon hereby move pursuant to Federal Rule of Civil Procedure 12(f) to strike all allegations

               24      pertaining to a putative class from plaintiff’s Complaint because these allegations are immaterial.

               25      Plaintiff does not plead, and could not satisfy, the requirements for maintaining a class action

               26      under, Federal Rule of Civil Procedure 23 because individual issues of reliance predominate.

               27                      Accordingly, defendants ask the Court to order all references to class action

               28      claims stricken from the Complaint, including the following:
                       SF\504008.1                                                          Case Number: C-04-4878 MMC ARB
ATTORNEYS AT LAW
                        033478-0001                                        2    NOTICE OF MOTION AND MOTION TO DISMISS
 SAN FRANCISCO
                                                                                     AND, IN THE ALTERNATIVE, TO STRIKE
                   1        1. the reference to “all others similarly situated” in the caption on page one of the

                   2   Complaint;

                   3        2. the reference to “Plaintiffs” (plural) in the caption on page one of the Complaint;

                   4        3. the reference to “all other persons similarly situated” on page one of the Complaint; and

                   5        4. the use of plural conjugation relating to plaintiff’s alleged damages in paragraphs 36 and

                   6   38 of the Complaint.

                   7

                   8                   WHEREFORE, defendants XOMA Ltd., John L. Castello, and Patrick J. Scannon

                   9   respectfully request that this Court dismiss plaintiff’s Complaint, or in the alternative, strike any

               10      reference to class action claims on behalf of others similarly situated.

               11

               12

               13      Dated: February 22, 2005                           Respectfully submitted,

               14                                                         LATHAM & WATKINS LLP
                                                                            Paul H. Dawes
               15                                                           Michele F. Kyrouz

               16
               17                                                         By             /s/ Michele F. Kyrouz
                                                                               Michele F. Kyrouz
               18                                                              Attorneys for Defendants,
                                                                               XOMA Ltd, John L. Castello, and
               19                                                              Patrick J. Scannon.

               20

               21

               22

               23

               24

               25

               26

               27

               28
                       SF\504008.1                                                          Case Number: C-04-4878 MMC ARB
ATTORNEYS AT LAW
                        033478-0001                                       3     NOTICE OF MOTION AND MOTION TO DISMISS
 SAN FRANCISCO
                                                                                     AND, IN THE ALTERNATIVE, TO STRIKE

								
To top