Centaur Classic Convertible Arbitrage Fund Ltd. v. Countrywide Financial Corp.

878 F. Supp. 2d 1009, 2011 WL 7939090, 2011 U.S. Dist. LEXIS 155233
CourtDistrict Court, C.D. California
DecidedJanuary 20, 2011
DocketCase No. 10-CV-05699 MRP (MANx)
StatusPublished
Cited by12 cases

This text of 878 F. Supp. 2d 1009 (Centaur Classic Convertible Arbitrage Fund Ltd. v. Countrywide Financial Corp.) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Centaur Classic Convertible Arbitrage Fund Ltd. v. Countrywide Financial Corp., 878 F. Supp. 2d 1009, 2011 WL 7939090, 2011 U.S. Dist. LEXIS 155233 (C.D. Cal. 2011).

Opinion

ORDER RE: DEFENDANTS’ MOTIONS TO DISMISS

MARIANA R. PFAELZER, District Judge.

I. INTRODUCTION & BACKGROUND

This securities action was brought by eight institutional affiliates of Argent Classic Convertible Arbitrage Fund (the “Argent Classic Fund”), the lead plaintiff in the now dismissed class action Argent Classic Com. Arb. Fund v. Countrywide Fin. Corp. et al., No. 07-cv-07097-MRP (MANx) (“Argent”), and 38 other institutional investors. After the Court’s denial of class certification in Argent, the parties stipulated to a dismissal with prejudice of that case on May 4, 2010.1 About three months later, on July 30, 2010, this lawsuit was filed. The 46 institutional plaintiffs here allege that they purchased unregistered, privately-placed Series A and Series B Floating Rate Convertible Senior Debentures Due 2037 (the “Debentures”), issued by Defendant Countrywide Financial Corporation (“Countrywide”), at unidentified times during the six months between the Debentures’ initial offering on May 16, 2007 and November 21, 2007, which Plaintiffs define as the relevant period. Compl. (Docket No. 1) at 3:17-21.

[1013]*1013Plaintiffs here assert the same six claims regarding the same Debentures that were asserted in Argent2 The claims are brought against Countrywide and its former senior executive officers and directors (herein referred to as the “Individual Defendants” 3). Under the Securities Exchange Act of 1934 (“Exchange Act”), the first claim is for violation of § 10(b) and Rule 10b-5 (Count I). The second claim is for violation of § 20(a) (Count II) and is brought against the Individual Defendants only. The remaining claims arise under California' state law: violation of Sections 25400(d), 25500, and 25504.1 of the California Corporations Code (Counts III and IV) brought against Countrywide only; common law fraud and deceit (Count V); and common law negligent misrepresentation (Count VI). Plaintiffs claim any applicable statutes of limitation with respect to their claims were tolled no later than October 30, 2007, by the filing of the class action complaint in Argent, pursuant to the doctrine announced in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 552, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Compl. ¶ 704.

Countrywide has filed a motion to dismiss on the basis of the statutes of limitation and failure to satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act, 15 U.S.C. § 78j. The Individual Defendants joined in the motion, and Defendant Sambol filed an additional motion which addresses Plaintiffs’ failure to adequately plead scienter with respect to him. The Court notes that Countrywide’s motion identifies a host of deficiencies in the Complaint, but in the interests of efficiency, the Court singles out only a few as a basis of-this ruling.

The Court GRANTS Countrywide’s motion to dismiss in its entirety. First, the Court holds the state law claims are barred by their respective statutes of limitation and DISMISSES them WITH PREJUDICE. Second, .the Court DISMISSES the federal securities claims WITHOUT PREJUDICE because the Complaint fails to specify the material facts as to each Plaintiffs claim, including the dates and the amounts of Plaintiffs’ alleged securities purchases or the statements upon which Plaintiffs allegedly relied in entering into these transactions. Third, there are no allegations as to sales or dispositions of the securities as there must be to support any allegation of loss. Finally, with respect to Defendant Sambol, because the Court grants Countrywide’s motion to dismiss, the Court DENIES AS MOOT Sambol’s separate motion to dismiss without prejudice to Sambol’s renewing his motion after Plaintiffs have re-pleaded. .

II. DISCUSSION

A. Motion to Dismiss Standard

A motion to dismiss tests whether the allegations in a complaint, if true, amount to an actionable claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).- This “facial plausibility” standard requires the plaintiff to allege facts that add up-to “more than a [1014]*1014sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In deciding whether the plaintiff has stated a claim, the Court must assume the plaintiffs allegations are true and draw all reasonable inferences in the plaintiffs favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However, the Court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.2008).

B. Statute of Limitations

Defendants argue that Plaintiffs’ state law claims must be dismissed because they are barred by their respective statutes of limitation. “A motion to dismiss based on the running of the statute of limitations period may be granted only ‘if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove the statute was tolled.’ ” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir.1995) (quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980)). The untimeliness must appear beyond doubt on the face of the complaint before a claim will be dismissed as time-barred. See id.

The Complaint asserts that the statutes of limitation on all of the claims are tolled by American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Compl. ¶ 704. Defendants concede that the doctrine of American Pipe applies to toll the federal claims but dispute its application to the state law claims. In their brief and at oral argument, Plaintiffs contend the state law claims are tolled also by California’s equitable tolling doctrine and by this Court’s exercise of supplemental jurisdiction in Argent, under 28 U.S.C.

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Bluebook (online)
878 F. Supp. 2d 1009, 2011 WL 7939090, 2011 U.S. Dist. LEXIS 155233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/centaur-classic-convertible-arbitrage-fund-ltd-v-countrywide-financial-cacd-2011.