IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 15, 2010
EDWARD CLARKE, PLAINTIFF,
MICHAEL LINDEMAN, LORRAINE LINDEMAN, DAVID NICKUM, VALLEY AGGREGATE TRANSPORT, INC., AND ADMINISTRATION COMMITTEE FOR THE VALLEY AGGREGATE, INC.,EMPLOYEE STOCK OWNERSHIP PLAN, DEFENDANTS.
ORDER GRANTING MOTION TO DISMISS
GOOD CAUSE APPEARING,
1. The Court grants Defendants David Nickum ("Nickum"), Valley Aggregate Transport, Inc. ("VAT") and Administration Committee for the Valley Aggregate Transport, Inc. Employee Stock Ownership Plan's ("Administration") Cross Motion to Strike (Document #23). Consideration of the documents submitted by Plaintiff in connection with Plaintiff's Opposition to Nickum, VAT and the Administration's Motion to Dismiss is improper for the reasons set forth in the Cross-Motion to Strike.
2. Nickum, VAT and the Administration's Motion to Dismiss (Document #12) is GRANTED WITHOUT PREJUDICE. Plaintiff is ordered to file an Amended Complaint within twenty (20) days of the date of this Order. Plaintiff is cautioned that the Amended Complaint must set forth specifically and in greater detail his theory of liability against each of these three Defendants. Any attempt by Plaintiff to keep these three defendants in this case without more detailed allegations will be looked upon with disfavor. It is readily apparent to this Court that Plaintiff's primary dispute is with Defendants Michael and Lorraine Lindeman. This Court is not yet convinced that Defendants Nickum, VAT and the Administration can be held liable absent sufficient allegations going to their alleged fiduciary duties. However, this Court cannot say with certainty at this early stage of the proceedings that granting leave to amend would be futile. Accordingly, Plaintiff will be given one more opportunity to attempt to properly plead his claims against these three defendants.
IT IS SO ORDERED.
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