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POWERS v. EICHEN

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA


May 23, 1997

ROBERT POWERS, et al., Plaintiffs,
v.
PAUL EICHEN, et al., Defendants.

The opinion of the court was delivered by: BREWSTER

ORDER GRANTING DEFENDANTS' MOTION FOR RECONSIDERATION AND AFFIRMING COURT'S PRIOR ORDER; GRANTING MOTION TO STRIKE; AND DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL

 On March 26, 1997, Defendants filed the following motions:

 

(1) a motion for reconsideration of the Court's order granting in part and denying in part Defendants' motion to dismiss;

 

(2) a motion for certification for interlocutory appeal;

 

(3) a motion to strike portions of the complaint.

 Upon due consideration of the moving and responding papers, the Court hereby GRANTS Defendants' motion for reconsideration, but affirms its order granting in part and denying in part Defendants' motion to dismiss. In addition, the Court hereby GRANTS Defendants' motion to strike those portions of the complaint that refer to the previous litigation and settlement involving Proxima, and DENIES Defendants' motion for certification for interlocutory appeal.

 A. Motion for Reconsideration

 On March 13, 1997, this Court issued an order granting in part and denying in part Defendants' motion to dismiss pursuant to Rule 12(b)(6). In that Order, the Court thoroughly explained the reasoning in support of its ruling. In its motion for reconsideration, Defendants challenge the Court's ruling on the basis that the Court did not require the Plaintiffs to plead "evidentiary facts" as is required by the Private Securities Litigation Reform Act (Reform Act) and the controlling case law. Essentially, Defendants are attempting to get a second bite at the apple by presenting the Court with the same arguments that Defendants previously presented in their briefs and during oral argument. Although Defendants claim that the Court did not hold Plaintiffs to the correct pleading standard, the Court disagrees. The Court's order specifically addressed the cases which set out the pleading standard and held that Plaintiffs had satisfied their burden. See Order at pp. 6-10. See Fecht v. Price Co., 70 F.3d 1078, 1082 (9th Cir. 1995), cert. denied, 134 L. Ed. 2d 547, 116 S. Ct. 1422 (1996); In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc); Warshaw v. Xoma Corp., 74 F.3d 955, 960 (9th Cir. 1996). Upon reconsideration of Defendants arguments and a further review of Plaintiffs' complaint, the Court is completely comfortable with the rulings it made in its March order. Accordingly, the Court affirms its March order in its entirety.

 B. Motion to Strike

 Defendants additionally move to strike from Plaintiffs' complaint all references to the previous litigation against Proxima and the settlement of that litigation. Good cause appearing, the Court GRANTS Defendants' motion and hereby orders that such references be stricken from Plaintiffs' complaint.

 C. Motion for Certification for Interlocutory Appeal

 Alternatively, Defendants request that the Court certify its order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Certification of an interlocutory order for appeal is appropriate only where the movant establishes that (1) the order presents a controlling question of law; (2) there are substantial grounds for difference of opinion on that controlling question of law; and (3) an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). Defendants claim that this Court did not apply the correct standard of law in determining whether Plaintiffs' complaint was sufficient to withstand a motion to dismiss. As stated above, Defendants contend that the Court failed to require Plaintiffs to plead "evidentiary facts" in their complaint as the controlling case law and Reform Act requires. See Fecht v. Price Co., 70 F.3d 1078, 1082 (9th Cir. 1995), cert denied, 134 L. Ed. 2d 547, 116 S. Ct. 1422 (1996); In re GlenFed, Inc. See, Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc); Warshaw v. Xoma Corp., 74 F.3d 955, 960 (9th Cir. 1996).

 Defendants' argument is without merit. The cases that Defendants contend that this Court ignored are precisely the cases the Court relied upon in making its ruling. Applying the law from these cases, the Court held that Plaintiffs had sufficiently pled their case so as to withstand a motion to dismiss Defendants do not present the Court with a controlling issue of law as to which there is substantial ground for difference of opinion, rather Defendants challenge the manner in which the Court applied the facts in the instant case to the law. Therefore, the Court finds that its March order is not appropriate for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Defendants' motion for certification is DENIED.

 IT IS SO ORDERED.

 Dated: May 23 1997

 RUDI M. BREWSTER

 UNITED STATES DISTRICT JUDGE

19970523

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