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So v. Land Base

December 16, 2009

KEVIN SO, PLAINTIFF,
v.
LAND BASE, LLC; UNIVEST FINANCIAL SERVICES, INC.; BORIS LOPATIN, INDIVIDUALLY AND D/B/A BORIS LOPATIN ASSOCIATES AND CHARLES W. WOODHEAD, DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER DENYING DEFENDANT LOPATIN'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, MOTION TO DISMISS FOR IMPROPER VENUE, AND MOTION TO COMPEL ARBITRATION [Motion filed on October 16, 2009]

This matter comes before the Court on a Motion to Dismiss filed by the defendant Boris Lopatin ("Lopatin"), appearing pro se. After reviewing the papers submitted by the parties and considering the arguments raised therein, the Court DENIES the motion and adopts the following order.

I. BACKGROUND

The plaintiff Kevin So ("Plaintiff"), a wealthy businessman living in Hong Kong, alleges that he was duped by several conspiring co-defendants, including Lopatin, into investing $30 million in an elaborate Ponzi scheme known as the Private Placement Project. (Second Amended Complaint ("SAC") ¶¶ 22, 39.) Plaintiff asserts a number of causes of action against Lopatin and the other defendants, including, among others, fraud, conversion, and unjust enrichment.

Lopatin, appearing pro se, has filed what is styled as a Motion to Dismiss the SAC.*fn1 The motion asserts that the SAC should be dismissed because (1)Plaintiff lacks standing, (2) Plaintiff and Lopatin are parties to a binding arbitration agreement, and (3) venue is improper. Because courts have a duty to construe pro se motions liberally, the Court construes Lopatin's motion as (1) a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) based on Plaintiff's lack of standing; (2) a motion to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3); and (3) a motion to compel arbitration.

II. DISCUSSION

A. Motion to Dismiss for Failure to State a Claim

1. Legal Standard

A complaint will survive a motion to dismiss when it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a pleading need not include "detailed factual allegations," it must be "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. Conclusory allegations or allegations that are no more than a statement of a legal conclusion "are not entitled to the assumption of truth." Id. at 1950. In other words, a pleading that merely offers "labels and conclusions," a "formulaic recitation of the elements," or "naked assertions" will not be sufficient to state a claim upon which relief can be granted. Id. at 1949 (citations and internal quotation marks omitted).

"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 1950. Plaintiffs must allege "plausible grounds to infer" that their claims rise "above the speculative level." Twombly, 550 U.S. at 555-56. "Determining whether a complaint states a plausible claim for relief" is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950.

2. Analysis

Lopatin argues that Plaintiff lacks standing because he has not produced evidence that he in fact lost $30 million and "the true source of the then invested funds is unquestionably in dispute, and of grave concern." (Mot. 3:21-22.)

In order to satisfy Article III's standing requirements, a plaintiff must show:

(1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely ...


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