The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR
PARTIAL DISMISSAL OF FOURTH AMENDED COMPLAINT; VACATING HEARING
Before the Court is defendants' motion, filed September 26,
2005, for partial dismissal of plaintiff I-Enterprise Company
LLC's ("I-Enterprise") Fourth Amended Complaint, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. I-Enterprise
has filed opposition to the motion, to which defendants have
replied. Having considered the papers submitted in support of and
in opposition to the motion, the Court finds the matter
appropriate for decision without oral argument, see Civil L.R.
7-1(b), and hereby VACATES the November 4, 2005 hearing. For the
reasons set forth below, the motion is GRANTED in part and DENIED
In 1998 and 1999, I-Enterprise, through its
predecessors-in-interest, invested in two venture capital funds, Draper Fisher Jurvetson Fund V L.P. ("Fund
V") and Draper Fisher Jurvetson Fund VI L.P. ("Fund VI")
(collectively, "the Funds"). (See Fourth Amended Complaint
("4AC") ¶¶ 1, 4.) I-Enterprise alleges that it has suffered more
than $40 million in damages as a result of defendants' fraudulent
and negligent misrepresentations, breach of contract, breach of
fiduciary duty, state securities law violations, unfair business
practices, conversion, and unjust enrichment. (See id. ¶¶ 1,
Defendant Draper Fisher Jurvetson Management Company V, LLC
("DFJ-V") is the general partner of Fund V. (See id. ¶ 5.)
Defendant Draper Fisher Jurvetson Management Company VI, LLC
("DFJ-VI") is the general partner of Fund VI. (See id. ¶ 6.)
Defendants Timothy C. Draper ("Draper"), John H.N. Fisher
("Fisher"), and Stephen T. Jurvetson ("Jurvetson") (collectively,
"individual defendants") are managing directors of DFJ-V and
DFJ-VI. (See id. ¶¶ 7-9.) The individual defendants are also
general partners in the Draper Fisher Jurvetson general
partnership ("DFJ"). (See id.)
A motion to dismiss under Rule 12(b)(6) cannot be granted
unless "it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Dismissal can be based on the lack of a cognizable legal theory
or the absence of sufficient facts alleged under a cognizable
legal theory. See Balistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1990).
Generally, a district court, in ruling on a Rule 12(b)(6)
motion, may not consider any material beyond the pleadings. See
Hal Roach Studios, Inc. v. Richard Feiner And Co., Inc.,
896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). Material that is properly
submitted as part of the complaint, however, may be considered.
See id. Documents whose contents are alleged in the
complaint, and whose authenticity no party questions, but which
are not physically attached to the pleading, also may be
considered. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.
1994). In addition, the Court may consider any document "the
authenticity of which is not contested, and upon which the
plaintiff's complaint necessarily relies," regardless of whether the document is referred to in the
complaint. See Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th
Cir. 1998). Finally, the Court may consider matters that are
subject to judicial notice. See Mack v. South Bay Beer
Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).
In analyzing a motion to dismiss, the Court must accept as true
all material allegations in the complaint, and construe them in
the light most favorable to the nonmoving party. See NL
Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
The Court may disregard factual allegations if such allegations
are contradicted by the facts established by reference to
exhibits attached to the complaint. See Durning v. First
Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Conclusory
allegations, unsupported by the facts alleged, need not be
accepted as true. See Holden v. Hagopian, 978 F.2d 1115, 1121
(9th Cir. 1992).
I-Enterprise, in its opposition, notes that the Court
previously has dismissed I-Enterprise's claim for conversion
against DFJ-V, and states it has realleged the claim in the
Fourth Amended Complaint solely to preserve the issue for appeal.
Accordingly, as I-Enterprise is no longer asserting a
conversion claim, defendants' motion to dismiss the conversion
claim will be DENIED as moot.
Defendants move to dismiss I-Enterprise's unjust enrichment
claims, on the ground the Court previously dismissed those claims