Innovativ Media Group, Inc. v. Beys

• Court: District Court, D. Nevada
• Decided: September 30, 2024
• Docket: 2:22-cv-01184
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 INNOVATIVE MEDIA GROUP, INC., et al., Case No. 2:22-CV-1184 JCM (EJY)

8 Plaintiff(s), ORDER

9 v.

10 MICHAEL BEYS, et al.,

11 Defendant(s).

12 13 Presently before the court is defendants Michael Beys, Richard De Silva, Lateral U.S. 14 Opportunities Fund AI, L.P., Lateral U.S. Credit Opportunities Fund QP, L.P., Lateral Credit 15 Opportunities, LLC, Lateral Investment Management, LLC (“LIM”), Lateral Feeder, LLC, and 16 Lateral Juscom Feeder, LLC’s1 (collectively, “defendants”) renewed motion to dismiss, or in the 17 alternative, for summary judgment as to the claims in Case No. 2:22-cv-01184-JCM-EJY (the 18 19 “derivative action”). (ECF No. 93). 20 Also before the court is defendants Beys, De Silva, and FTE Networks, Inc.’s (“FTE”) 21 renewed motion to dismiss the claims in Case No. 2:22-cv-01362-CDS-VCF (the “proxy 22 action”). (Id.). Plaintiffs Innovativ Media Group, Inc. (“Innovativ”) and TTP8, LLC (“TTP8”) 23 filed a response to both motions (ECF No. 100), to which defendants replied. (ECF No. 102). 24 25 . . . 26 . . . 27

28 1 Collectively, the “lateral entities.” 1 I. Background 2 This consolidated action arises out of two cases: (1) the derivative action, and (2) the 3 proxy action. Innovativ and TTP8 filed the derivative action against Beys, De Silva, and the 4 lateral entities. Innovativ filed the proxy action against Beys, De Silva, and FTE. 5 6 A. The derivative action 7 The derivative action arises out of alleged breaches of fiduciary duties and fraud.2 (ECF 8 No. 34). TTP8 allegedly agreed to assume $3,900,000 of FTE’s debt in exchange for 4.1 million 9 shares of FTE. (Id. at 47). 10 FTE’s debt was owed to TBK Partners 327, LLC and Suwyn Investments, LLC. (ECF 11 12 No. 93 at 10). Declarations submitted by the managers of TBK Partners 327, LLC and Suwyn 13 Investments, LLC represent that TTP8 never acquired legal right, title, and interest in the subject 14 debt. (ECF No. 94, Ex. 1). 15 The gravamen of TTP8’s federal law claims is that De Silva and LIM engaged in a 16 scheme and made misrepresentations as to FTE’s financials to induce TTP8 to assume FTE’s 17 18 debt in exchange for the shares. (ECF No. 34 at 50). The derivative action alleges a total of five 19 state law claims and two federal law claims.3 20 . . . 21 . . . 22 23 24 2 The court recites only those facts related to TTP8’s securities fraud claims. 25 3 All plaintiffs allege the following state law claims: (1) direct breach of duty of loyalty against Beys and De Silva; (2) derivative direct breach of duty of loyalty against Beys and De 26 Silva; (3) derivative breach of fiduciary duty of competency against Beys and De Silva; (4) derivative constructive trust against the lateral entities; and (5) unjust enrichment against the 27 lateral entities. (ECF No. 34). The federal law claims are brought only by TTP8: (1) a violation of Rule 10b-5(a)-(c), of Section 10(b) of the Securities and Exchange Act of 1934 by De Silva, 28 and (2) a violation of Rule 10b-5(a) and (c), of Section 10(b) of the Securities and Exchange Act of 1934 by LIM. (Id.). 1 B. The proxy action 2 The gravamen of Innovativ’s proxy claims is that FTE’s August 17, 2022, proxy 3 statement and attendant cancellation notice violated federal securities laws. (Case No. 2:22-cv- 4 01362-CDS-VCF; ECF No. 52). 5 6 Innovativ alleges that the proxy was issued to “notice and hold an expedited shareholder 7 meeting on August 29, 2022, and disseminate material information to FTE’s shareholders to rig a 8 vote consistent with management’s wishes.” (Id. at 9). The shareholder meeting never took 9 place. (ECF No. 93 at 25). Moreover, Innovativ alleges that the proxy contained defamatory 10 statements and material misrepresentations and omissions. (See Case No. 2:22-cv-01362-CDS- 11 12 VCF; ECF No. 52). 13 On November 9, 2022, Innovativ’s complaint was dismissed, without prejudice, but it 14 was given leave to amend. (Case No. 2:22-cv-01362-CDS-VCF; ECF No. 48). The proxy 15 action charges FTE, Beys, and De Silva with two federal law violations.4 16 II. The Derivative Action 17 18 The court converts defendants’ motion to dismiss into one for summary judgment. The 19 court, on a motion to dismiss, is limited to the allegations contained in the complaint. Lee v. City 20 of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Affidavits and declarations “are not allowed 21 as pleading exhibits unless they form the basis of the complaint.” United States v. Ritchie, 342 22 F.3d 903, 908 (9th Cir. 2003). 23 24 “A motion under Federal Rule of Civil Procedure 12(b)(6) or 12(c) may be treated as 25 a motion for summary judgment only if the court affords all parties reasonable notice.” Mayer v. 26

27 4 The first cause of action alleges that FTE violated Section 14(a) and Rule 14a-9 of the 28 Exchange Act. (Case No. 2:22-cv-01362-CDS-VCF; ECF No. 52 at 20). The second cause of action alleges that Beys and De Silva violated Section 20(a) of the Exchange Act. (Id.). 1 Wedgewood Neighborhood Coalition, 707 F.2d 1020, 1021 (9th Cir. 1983). “In evaluating the 2 adequacy of notice, this circuit has determined from the record whether the party against 3 whom summary judgment was entered was fairly apprised that the court would look beyond the 4 pleadings and thereby transform the 12(b) motion to dismiss into one for summary judgment.” 5 6 Portland Retail Druggists Association v. Kaiser Foundation Health Plan, 662 F.2d 641, 645 (9th 7 Cir. 1981). 8 The Ninth Circuit’s notice requirement has been met. Defendants’ motion to dismiss 9 clearly states that it was alternatively a motion for summary judgment. (ECF No. 93). In fact, 10 TTP8 responded to part of defendants’ arguments for summary judgment. (ECF No. 100). 11 12 Thus, because the court considers defendants’ declarations, it converts the instant motion to 13 dismiss into one for summary judgment. 14 A. Legal Standard 15 The Federal Rules of Civil Procedure allow summary judgment when the pleadings, 16 depositions, answers to interrogatories, and admissions on file, together with the affidavits (if 17 18 any), show that “there is no genuine dispute as to any material fact and the movant is entitled to 19 judgment as a matter of law.” Fed. R. Civ. P. 56(a). Information may be considered at the 20 summary judgment stage if it would be admissible at trial. Fraser v. Goodale, 342 F.3d 1032, 21 1036 (9th Cir. 2003) (citing Block v. Los Angeles, 253 F.3d 410, 418–19 (9th Cir. 2001)). A 22 principal purpose of summary judgment is “to isolate and dispose of factually unsupported 23 24 claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 25 In judging evidence at the summary judgment stage, the court does not make credibility 26 determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most 27 28 1 favorable to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 2 F.2d 626, 630–31 (9th Cir.1987). 3 When the non-moving party bears the burden of proof at trial, the moving party can meet 4 its burden on summary judgment in two ways: (1) by presenting evidence to negate an essential 5 6 element of the non-moving party’s case; or (2) by demonstrating that the non-moving party 7 failed to make a showing sufficient to establish an element essential to that party’s case on which 8 that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the 9 moving party fails to meet its initial burden, summary judgment must be denied, and the court 10 need not consider the non-moving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 11 12 144, 159–60 (1970). 13 If the moving party satisfies its initial burden, the burden then shifts to the opposing party 14 to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith 15 Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the 16 opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient 17 18 that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ 19 differing versions of the truth at trial.” T.W. Elec. Serv., Inc., 809 F.2d at 630. 20 However, the nonmoving party cannot avoid summary judgment by relying solely on 21 conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 22 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of 23 24 the pleadings and set forth specific facts by producing competent evidence that shows a genuine 25 issue for trial. See Celotex, 477 U.S. at 324. If the nonmoving party’s evidence is merely 26 colorable or is not significantly probative, summary judgment may be granted. Anderson v. 27 Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). 28 1 B. Discussion 2 As an initial matter, the court does not find it necessary for TTP8 to conduct additional 3 discovery and therefore denies its request. TTP8 has failed to show that the sought-after facts 4 are essential to resist summary judgment. See State of Cal., on Behalf of California Dep't of 5 6 Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). 7 1. Personal and subject matter jurisdiction 8 Defendants argue that two jurisdictional issues arise from plaintiffs’ derivative action. 9 First, they argue that this court lacks personal jurisdiction over the lateral entities (other than 10 LIM). (ECF No. 93 at 16). Plaintiffs argue that specific personal jurisdiction exists because De 11 12 Silva was an agent of the lateral entities. (ECF No. 100 at 21). 13 Two categories of personal jurisdiction exist: (1) general jurisdiction and (2) specific 14 jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–15 15 (1984); see also LSI Indus., Inc. v. Hubbell Lighting, Inc., 232 F.3d 1369, 1375 (Fed. Cir. 2000). 16 De Silva is the CEO of LIM and he controlled the lateral entities. (ECF No. 34 at 8). Thus, his 17 18 contacts are imputed to the lateral entities and the court has specific personal jurisdiction over 19 them. See generally Williams v. Yamaha Motor Co., 851 F.3d 1015, 1025 (9th Cir. 2017). 20 Defendants also argue that the court should not exercise supplemental jurisdiction over 21 plaintiffs’ state law claims because the federal law claims must be dismissed. (ECF No. 93). For 22 the reasons stated below, the federal law claims do not survive summary judgment. Because this 23 24 court lacks an independent basis for jurisdiction over the state law claims, it will decline to 25 exercise supplemental jurisdiction and dismisses those claims as well. 26 . . . 27 . . . 28 1 2. TTP8’s federal law claims 2 TTP8 alleges that De Silva and LIM violated Rule 10b-5 of Section 10(b) of the 3 Securities and Exchange Act of 1934. (ECF No. 34 at 45-51). 4 SEC Rule 10b-5 states, in relevant part, 5 6 It shall be unlawful for any person . . . (a) [t]o employ any device, scheme, or artifice to defraud, (b) [t]o make any untrue statement of a material fact or to omit 7 to state a material fact necessary in order to make the statements made . . . not misleading, or (c) [t]o engage in any act, practice, or course of business which 8 operates or would operate as a fraud or deceit upon any person, in connection 9 with the purchase or sale of any security.

10 17 C.F.R. § 240.10b-5(a)-(c). 11 The first type of proscribed activity, brought under subsections (a) and (c), has been 12 deemed “scheme liability.”5 E.g., In re Alphabet, Inc. Sec. Litig., 1 F.4th 687, 709 (9th Cir. 13 2021). The second type of proscribed activity, making material misrepresentations or omissions, 14 15 is brought under subsection (b) of Rule 10b-5.6 Compare Plumber & Steamfitters Local 773 16 Pension Fund v. Danske Bank A/S, 11 F.4th 90, 105 (2d Cir. 2021) (scheme liability) with 17 Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 38 (2011) (material misrepresentations or 18 omissions). 19 20 21 22 5 The elements for scheme liability are: “(1) that the defendant committed a deceptive or manipulative act, (2) in furtherance of the alleged scheme to defraud, (3) with scienter, and (4) 23 reliance.” Plumber & Steamfitters Local 773 Pension Fund v. Danske Bank A/S, 11 F.4th 90, 105 (2d Cir. 2021). The scheme must “encompass […] conduct beyond those misrepresentations 24 or omissions.” WPP Lux. Gamma Three Sarl v. Spot Runner, Inc., 655 F.3d 1039, 1057 (9th Cir. 2011) (quoting 17 C.F.R. § 240, SEC Rules 10b-5(a) and (c)). 25 6 The elements for a claim of material misrepresentation or omissions are: “(1) a material 26 misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the 27 misrepresentation or omission; (5) economic loss; and (6) loss causation.” Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 38–38 (2011) (citations omitted). 28 1 TTP8 alleges that De Silva violated subsections (a), (b), and (c), while LIM violated only 2 subsections (a) and (c). (ECF No. 34 at 45-51). 3 An action brought under Section 10(b) and Rule 10b-5 is limited to actual purchasers or 4 sellers of securities. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730 (1975). TTP8 5 6 alleges that it “entered into a ‘purchase’ pursuant to 15 U.S.C. § 78c(a)(13) of a ‘sale’ pursuant 7 to § 78c(a)(14) of a substantial quantity of stock in FTE.” (ECF No. 34 at 46; 49). Defendants 8 contend that TTP8 did not have, and still does not have, a legally valid right, title, or interest in 9 the debt owed to TBK Partners 327, LLC and Suwyn Investments, LLC. (ECF No. 93 at 11). 10 A threshold issue is whether TTP8 owned the debt that was used in exchange for FTE 11 12 stock. If it did not own the debt, TTP8 cannot charge defendants with Rule 10b-5 violations and 13 further make a showing sufficient to establish an economic loss. Chris Ferguson, the manager of 14 TBK Partners 327, LLC’s declaration states that TTP8 never acquired legal right, title, and 15 interest in the subject debt. (ECF No. 94, Ex. 1). Mark Suwyn, the manager of Suwyn 16 Investments, LLC states the same. (Id.). 17 18 TTP8 has not produced any competent evidence, as to the ownership of the debt, showing 19 a genuine issue for trial. See Celotex, 477 U.S. at 324. Rather, its complaint and opposition rely 20 solely on conclusory allegations that are unsupported by factual data, which is not sufficient to 21 defeat a motion for summary judgment. See List, 880 F.2d at 1045. 22 Defendants also contend that TTP8 and Suneet Singal (TTP8’s then representative) 23 24 approached FTE and De Silva with the debt cancellation transaction. (ECF No. 93 at 28). The 25 declaration of Beys explicitly states that “[on October 22, 2019,] TTP8’s principal, Mr. Singal: 26 (1) proposed to FTE that TTP8 acquire certain debt held by certain third parties (TBK 327 27 Partners and Suwyn Investments); and (2) proposed a subsequent related transaction whereby, in 28 1 exchange for cancelling such debt that TTP8 had still to acquire, FTE would issue TTP8 shares 2 of its common stock.” (ECF No. 94, Ex. 1 at 3). 3 TTP8’s opposition does not negate defendants’ argument with any competent evidence 4 showing a genuine issue of material fact as to whether it relied on any misrepresentations or 5 6 scheme, or both by De Silva and LIM. 7 Moreover, TTP8 has failed to provide this court with any evidence that it suffered any 8 economic loss as required under a Rule 10b-5 claim. TTP8 simply states that it “suffered 9 significant damages.” It has relied solely on conclusory allegations that are unsupported by 10 factual data. See List, 880 F.2d at 1045. 11 12 The court finds that defendants have met their burden by presenting evidence to negate 13 elements of TTP8’s federal law claims and have also demonstrated that TTP8 has failed to make 14 a showing sufficient to establish its federal law claims. See Celotex Corp., 477 U.S. at 323–24. 15 Summary judgment is appropriate as to TTP8’s federal law claims against De Silva and LIM. 16 As stated below, because no federal law claims remain, the court declines to exercise 17 18 supplemental jurisdiction over the remaining state law claims. 19 III. The Proxy Action 20 A. Legal Standard 21 A court may dismiss a complaint for “failure to state a claim upon which relief can be 22 granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain 23 24 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell 25 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed 26 factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of 27 28 1 the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation 2 omitted). 3 “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 4 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual 5 6 matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation 7 omitted). 8 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 9 when considering motions to dismiss. First, the court must accept as true all well-pled factual 10 allegations in the complaint; however, legal conclusions are not entitled to the assumption of 11 12 truth. Id. at 678–79. Mere recitals of the elements of a cause of action, supported only by 13 conclusory statements, do not suffice. Id. at 678. 14 Second, the court must consider whether the factual allegations in the complaint allege a 15 plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint 16 alleges facts that allow the court to draw a reasonable inference that the defendant is liable for 17 18 the alleged misconduct. Id. at 678. 19 Where the complaint does not permit the court to infer more than the mere possibility of 20 misconduct, the complaint has “alleged—but not shown—that the pleader is entitled to relief.” 21 Id. (internal quotation marks omitted). When the allegations in a complaint have not crossed the 22 line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 23 24 570. 25 The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 26 1202, 1216 (9th Cir. 2011). The Starr court stated, in relevant part: 27 First, to be entitled to the presumption of truth, allegations in a complaint or 28 counterclaim may not simply recite the elements of a cause of action, but must 1 contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that 2 are taken as true must plausibly suggest an entitlement to relief, such that it is not 3 unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. 4 Id. 5 6 District courts apply federal pleading standards to state law claims in federal court. See 7 Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1021 (9th Cir. 2013) (applying federal 8 pleading standards to action removed from state court). 9 The court, on a motion to dismiss, is limited to the allegations contained in the complaint. 10 City of Los Angeles, 250 F.3d at 688. “A court may, however, consider certain materials— 11 12 documents attached to the complaint, documents incorporated by reference in the complaint, or 13 matters of judicial notice—without converting the motion to dismiss into a motion for summary 14 judgment.” Ritchie, 342 F.3d at 908. 15 If the court grants a Rule 12(b)(6) motion to dismiss, it should grant leave to amend 16 unless the deficiencies cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 17 18 F.2d 655, 658 (9th Cir. 1992). Under Rule 15(a), the court should “freely” give leave to amend 19 “when justice so requires,” and absent “undue delay, bad faith, or dilatory motive on the part of 20 the movant, repeated failure to cure deficiencies by amendments . . . undue prejudice to the 21 opposing party . . . futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). 22 The court should grant leave to amend “even if no request to amend the pleading was made.” 23 24 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks 25 omitted). 26 . . . 27 . . . 28 1 B. Discussion 2 Innovativ alleges that FTE violated Section 14(a) and Rule 14a-9 of the Exchange Act, 3 while Beys and De Silva violated Section 20(a) of the Exchange Act. (Case No. 2:22-cv-01362- 4 CDS-VCF; ECF No. 52 at 18-21). 5 6 1. Section 14(a) and Rule 14a-9 7 To state a claim under Section 14(a) and Rule 14a-9, “a plaintiff must establish that (1) a 8 proxy statement contained a material misrepresentation or omission which (2) caused the 9 plaintiff injury and (3) that the proxy solicitation itself, rather than the particular defect in the 10 solicitation materials, was an essential link in the accomplishment of the transaction.” New York 11 12 City Employees' Ret. Sys. v. Jobs, 593 F.3d 1018, 1022 (9th Cir. 2010), overruled on other 13 grounds by Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012). 14 Section 14(a) plaintiffs must plead both economic loss and proximate 15 causation. Id. (citing Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005)). In well-pleaded 16 Section 14(a) claims, loss causation connects the proxy misstatements with an actual economic 17 18 harm. Id. (citing Grace v. Rosenstock, 228 F.3d 40, 46 (2d Cir. 2000); see also Dura, 544 U.S. 19 at 347 (faulting plaintiffs for not providing defendants notice of the relevant economic loss and 20 the causal connection between that loss and the misrepresentation). 21 Private Section 14(a) plaintiffs “must meet the heightened pleading standards of the 22 PSLRA.” Stoneridge Inv. Partners, LLC v. Scientific—Atlanta, 552 U.S. 148, 165 (2008). 23 24 Innovativ has failed to allege loss causation connecting the alleged proxy misstatements with an 25 actual economic harm. Nowhere in the amended complaint does Innovativ allege that it has 26 suffered any economic harm. Moreover, the shareholder meeting itself never took place. (ECF 27 No. 102 at 14). Therefore, it has failed to state a claim and dismissal is proper. 28 1 2. Section 20(a) 2 Innovativ alleges a claim under Section 20(a) in connection with its Section 14(a) claim 3 against Beys and De Silva. (Case No. 2:22-cv-01362-CDS-VCF; ECF No. 52 at 18-20). Section 4 20(a) claims require an underlying primary violation of the securities laws. See In re Rigel 5 6 Pharms., Inc. Secs. Litig., Inter-Local Pension Fund GCC/IBT v. Deleage, 697 F.3d 869, 886 7 (9th Cir. 2012). Because Innovativ does not have standing to pursue its Section 14(a) claim, it 8 does not have standing to pursue its Section 20(a) claim. See In re Cutera Sec. Litig., 610 F.3d 9 1103, 1113 n.6 (9th Cir. 2010). 10 Innovativ was given an opportunity to amend its complaint and it has since failed to 11 12 correct its deficiencies. Further leave to amend would be futile because Innovativ cannot cure 13 the complaint’s deficiencies. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 14 2010). Therefore, the court dismisses the complaint (Case No. 2:22-cv-01362-CDS-VCF; ECF 15 No. 52), with prejudice. 16 Because no federal law claims remain, the court declines to exercise supplemental 17 18 jurisdiction over the remaining state law claims. See City of Colton v. Am. Promotional Events, 19 Inc.-W., 614 F.3d 998, 1008 (9th Cir. 2010) (holding that the district court acted within its 20 discretion in declining to exercise supplemental jurisdiction after granting summary judgment on 21 all federal claims). 22 IV. Conclusion 23 24 Accordingly, 25 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants’ motion to 26 dismiss (ECF No. 93) is converted, in part, into a motion for summary judgment pursuant to Fed. 27 R. Civ. P. 56. 28 1 IT IS FURTHER ORDERED that defendants’ motion for summary judgment (ECF No. 2 93) as to the derivative claims (ECF No. 34), be and the same, is hereby, GRANTED. 3 IT IS FURTHER ORDERED that defendants’ motion to dismiss (ECF No. 93) the proxy 4 claims (Case No. 2:22-cv-01362-CDS-VCF; ECF No. 52), be and the same, is hereby, 5 6 GRANTED. 7 IT IS FURTHER ORDERED that Innovativ’s amended complaint (Id.) is DISMISSED, 8 with prejudice. 9 The clerk of the court is INSTRUCTED to lift the stay in this case. 10 As no claims remain, the clerk of the court is INSTRUCTED to enter judgment in favor 11 12 of defendants and close this case. 13 DATED September 30, 2024. 14 __________________________________________ 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28