Cohen v. Stratosphere Corporation

386 F.3d 950, 2004 U.S. App. LEXIS 22132

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2004
• Docket: 95-16098
• Status: Published

Opinion

386 F.3d 950

Harvey COHEN; Dawn Ennis; Robert Buckler; Jeffrey Wexler; Union Equity Partner, Plaintiffs-Appellants,
v.
STRATOSPHERE CORPORATION; Yaeger Securities, Inc.; Grand Casino Resorts, Inc.; Lyle Berman; Bob Stupak; Bob Stupak Enterprises; Andrew S. Blumen, Defendants-Appellees.

No. 95-16098.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 18, 1996.

Filed October 25, 2004.

Bert M. Brown, Brown & Brown, Chtd, Las Vegas, Nevada; Sherrie R. Savett, Todd S. Collins, Berger & Montague, Philadelphia, Pennsylvania, for the plaintiffs-appellants.

Mark G. Krum, Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, Los Angeles, California, for the defendant-appellee.

Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding. D.C. No. CV-94-00334-DWH.

Before: CANBY, FERNANDEZ, and Raymond C. FISHER,* Circuit Judges.

ORDER

Stratosphere Corporation was originally one of several defendants-appellees in appeal No. 95-16098. It entered bankruptcy while the appeal was pending, and all proceedings with regard to it were stayed in this court pursuant to 11 U.S.C. § 362(a). The panel as originally constituted decided the appeal with regard to all the other parties in Cohen v. Stratosphere Corp., 115 F.3d 695 (9th Cir.1997). We are now advised that Stratosphere's bankruptcy proceedings terminated on or about February 11, 2004. We therefore proceed with the appeal with regard to Stratosphere Corporation.

For the reasons stated in the prior opinion in this case, we now affirm the judgment of the district court dismissing, pursuant to Fed.R.Civ.P. 12(b)(6), the claims against Stratosphere Corporation based on the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5. We also affirm the dismissal without prejudice of the state law claims against Stratosphere. The judgment of the district court is therefore in all respects

AFFIRMED.

Notes:

* On September 23, 2004, Judge Fisher was drawn to replace Judge Choy, deceased