United States District Court, N.D. California
September 12, 2005.
In re EXODUS COMMUNICATIONS, INC. SECURITIES LITIGATION. This Document Relates to: ALL ACTIONS.
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER DENYING UNDERWRITER DEFENDANTS' MOTION FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION, MOTION FOR EXTENSION OF TIME TO
ANSWER, AND MOTION FOR STAY OF DISCOVERY
Before the Court is plaintiff's motion filed August 19, 2005,
seeking reconsideration of the Court's August 5, 2005 order
dismissing plaintiffs' claims under § 11 and § 15 of the
Securities Act of 1933, as asserted against defendant Ellen
Hancock ("Hancock"). For the following reasons, the motion is
DENIED, in its entirety.
1. The Court has already considered and rejected the
Underwriter Defendants' arguments that the pleading requirements
of Rule 9(b) of the Federal Rules of Civil Procedure apply to the
§ 11 claim asserted against them. (See Order Granting in Part
and Denying in Part Underwriter Defendants' Motion to Dismiss;
Granting Individual Defendants' Motion to Dismiss ("August 5
Order"), filed August 5, 2005, at 15-21.) The Underwriter
Defendants have not persuaded the Court that its ruling was
2. Contrary to the Underwriter Defendants' assertion, there is
no inconsistency in the Court's rulings. The Court's dismissal of plaintiffs' § 10(b)
claim, for failure to comply with the pleading requirements of
Rule 9(b), does not require dismissal of the § 11 claim based on
the same alleged misstatements of material fact, because Rule
9(b) has no application to the § 11 claim.
3. The Underwriter Defendants' new argument that certain of the
allegedly false statements at issue in the § 11 claim are
statements of "pure opinion," and that no § 11 claim can be
stated based on negligent statements of belief or opinion, is not
properly before the Court in a motion for reconsideration, as the
Underwriter Defendants did not raise the argument in their motion
4. There is no need to "clarify" the Court's order as to which
purportedly false statements remain at issue with respect to the
§ 11 claim. The Court expressly noted the statements at issue and
denied the motion to dismiss the § 11 claim, as asserted against
the Underwriter Defendants, in its entirety. (See August 5,
2005 Order at 10, 21.)
5. Because there is no basis for reconsideration of the Court's
August 5 Order as to the Underwriter Defendants, there is no
basis for granting the Underwriter Defendants an extension of
time to answer the complaint or a stay of discovery.
This order terminates Docket No. 254.
IT IS SO ORDERED.
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