Merix Corp. Securities Litigation v. Merix Corp.

Ninth Circuit

Merix Corp. Securities Litigation v. Merix Corp.

275 F. App'x 599

Court of Appeals for the Ninth Circuit·Decided April 22, 2008·No. No. 06-35894·Published

Opinions

MEMORANDUM

*

Central Laborers Pension Fund (the “Fund”) appeals the district court’s dismissal with prejudice of the Fund’s Second Consolidated and Amended Class Action Complaint (“SAC”) alleging violations of Sections 12 and 15 of the Securities Act by Merix Corporation and various other individuals and companies (collectively, “Defendants”). We have jurisdiction over this appeal under 28 U.S.C. § 1291. We reverse.

The Fund is not foreclosed from making allegations or claims in the SAC that are inconsistent with or contradicted by allegations or claims made in the Fund’s previous complaint. See PAE Gov’t Servs. v. MPRI, Inc., 514 F.3d 856, 858-60 (9th Cir.2007).

Fraud is not an essential element of the claims raised in the SAC, and the SAC neither specifically alleges fraud, nor does it allege facts that necessarily constitute fraud. See Vess v. CIBA-GEIGY Corp. USA, 317 F.3d 1097, 1104-05 (9th Cir. 2003). Accordingly, the allegations in the SAC do not “sound in fraud” and the SAC is not required to comply with the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). See id.

[600]*600We have considered and reject the additional arguments raised by Defendants.

REVERSED AND REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

*

Central Laborers Pension Fund (the “Fund”) appeals the district court’s dismissal with prejudice of the Fund’s Second Consolidated and Amended Class Action Complaint (“SAC”) alleging violations of Sections 12 and 15 of the Securities Act by Merix Corporation and various other individuals and companies (collectively, “Defendants”). We have jurisdiction over this appeal under 28 U.S.C. § 1291. We reverse.

The Fund is not foreclosed from making allegations or claims in the SAC that are inconsistent with or contradicted by allegations or claims made in the Fund’s previous complaint. See PAE Gov’t Servs. v. MPRI, Inc., 514 F.3d 856, 858-60 (9th Cir.2007).

Fraud is not an essential element of the claims raised in the SAC, and the SAC neither specifically alleges fraud, nor does it allege facts that necessarily constitute fraud. See Vess v. CIBA-GEIGY Corp. USA, 317 F.3d 1097, 1104-05 (9th Cir. 2003). Accordingly, the allegations in the SAC do not “sound in fraud” and the SAC is not required to comply with the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). See id.

[600]*600We have considered and reject the additional arguments raised by Defendants.

REVERSED AND REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Merix Corp. Securities Litigation v. Merix Corp., 275 F. App'x 599 (9th Cir. 2008).

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Fed. Sec. L. Rep. P 99,272, 96 Cal. Daily Op. Serv. 5268, 96 Daily Journal D.A.R. 8535 in Re Stac Electronics Securities Litigation. Timothy J. Anderson Neil Singer Arthur Singer, on Behalf of Themselves and All Others Similarly Situated v. Gary W. Clow Douglas Whiting Robert Johnson Alex Brown & Sons Incorporated Lawrence Finch

89 F.3d 1399 (Ninth Circuit, 1996)

Vess v. Ciba-Geigy Corp. USA

317 F.3d 1097 (Ninth Circuit, 2003)

In Re Daou Systems, Inc., Securities Litigation, Greg Sparling Eugene Krabbenhoft Patrick De Kruyff, Esq. Robert Zaretsky Rod Ford Thomas v. Hagman Richard W. Walsh Richard Toribio Paul Rabin v. Georges Daou Daniel Daou Fred McGee Robert McNeill John Moragne Daou Systems, Inc., in Re Daou Systems, Inc., Securities Litigation, Greg Sparling Eugene Krabbenhoft Patrick De Kruyff, Esq. Robert Zaretsky Rod Ford Thomas v. Hagman Richard W. Walsh Richar Toribio Paul Rabin v. Georges Daou Daniel Daou Fred McGee Robert McNeill John Moragne, and Daou Systems, Inc.

411 F.3d 1006 (Ninth Circuit, 2005)

PAE Government Services, Inc. v. MPRI, INC.

514 F.3d 856 (Ninth Circuit, 2007)

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