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Lopes v. Vieira

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 2, 2010

MANUEL LOPES AND MARIANA LOPES, ET AL., PLAINTIFFS,
v.
GEORGE VIEIRA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER DENYING WITHOUT PREJUDICE DEFENDANT GENSKE MULDER, LLP'S AND DEFENDANT DOWNEY BRAND LLP'S MOTIONS FOR SUMMARY JUDGMENT AGAINST PLAINTIFF ALVARO MACHADO ON FOURTH THROUGH EIGHTH CAUSES OF ACTION

(Docs. 108 & 127)

Defendants Genske Mulder LLP ("Genske Mulder") and Downey Brand LLP ("Downey Brand") respectively move for summary judgment or summary adjudication against Plaintiff Alvaro Machado on the Fourth through Eighth Causes of Action in the Second Amended Complaint ("SAC").

Genske Mulder seeks summary judgment or adjudication:

A. Fourth Cause of Action for securities fraud in violation of the Securities Act of 1934 on the ground that Plaintiff Machado did not purchase Valley Gold LLC's securities or any other securities;

B. Fifth Cause of Action for violation of California securities law on the ground that Plaintiff Machado did not purchase Valley Gold LLC's securities or any other securities;

C. Sixth Cause of Action for negligence on the grounds that Plaintiff Machado was not a client of Genske Mulder and Genske Mulder did not owe him a duty of care;

D. Seventh Cause of Action for intentional misrepresentation on the grounds that Plaintiff Machado did not receive or rely on, any material misrepresentation or omission made by Genske Mulder;

E. Eighth Cause of Action for negligent misrepresentation on the grounds the Plaintiff Machado did not receive or rely on, any material misrepresentation made by Genske Mulder.

Downey Brand seeks summary judgment or adjudication as to the Fourth and Fifth Causes of Action on the grounds that Plaintiff Machado did not purchase a security; on the Fourth through Eighth Causes of Action on the grounds that Plaintiff Machado cannot establish that Downey Brand made an affirmative misrepresentation and owed Plaintiff no duty to disclose; and on the Fourth through Eighth Causes of Action on the grounds that Plaintiff Machado cannot establish reliance or causation.

Plaintiff Machado has not filed an opposition to these motions for summary judgment. On November 23, 2009 (Doc. 174), counsel for Plaintiffs filed a "Statement of Fact of Death of Plaintiff Alvaro Machado," representing that Plaintiff Machado has died, and requesting the Court "hold in abeyance all matters pending that would impact the estate of Alvaro Machado" and advising his widow, Mary Machado that a motion to substitute a successor-in-interest in place of Alvaro Machado must be filed within 90 days or the action will be dismissed as to Plaintiff Alvaro Machado.

Defendants' motions for summary judgment against Plaintiff Alvaro Machado are DENIED WITHOUT PREJUDICE. If Mary Machado timely substitutes as successor-in-interest in place of Alvaro Machado, Defendants may re-notice their motions for summary judgment for hearing.

IT IS SO ORDERED.

20100202

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