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Foster Rich v. Ralph W. Shrader

January 18, 2011

FOSTER RICH,
PLAINTIFF,
v.
RALPH W. SHRADER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION AND CLARIFICATION [Doc. No. 37]

Currently before the Court is Plaintiff Foster Rich's motion for reconsideration and clarification of the Court's order dismissing his First Amended Complaint. [Doc. No. 37.] Defendants opposed Plaintiff's motion, and Plaintiff filed a reply. [Doc. Nos. 41, 42.] The Court in its discretion determined Plaintiff's motion is suitable for a decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the following reasons, the Court DENIES Plaintiff's motion.

BACKGROUND & PROCEDURAL POSTURE

The Court detailed the events giving rise to this action in its previous memorandum order granting Defendants' motion to dismiss Plaintiff's First Amended Complaint ("FAC"). [Doc. No.36.] That section of the Court's September 17, 2010 Order is incorporated by reference herein. The Court's September 17 Order ultimately dismissed each of Plaintiff's causes of action for failure to state a claim upon which relief could be granted. The Court explicitly dismissed three claims with prejudice, which it determined were governed by the Nemec decision:*fn1 (i) breach of implied covenant of good faith and fair dealing (count 3); (ii) breach of fiduciary duty (count 4); and (iii) unjust enrichment (count 5). The Court dismissed the remainder of Plaintiff's claims without prejudice, including: (i) breach of contract (count 8); (ii) tortious interference with contract (count 7); (iii) RICO violations (count 1); (iv) RICO conspiracy (count 2); (v) securities fraud under federal law (count 6); and (vi) securities fraud under California law (count 9).

Plaintiff requests that the Court utilize its inherent authority under Federal Rule of Civil Procedure 54(b) to modify and amend its September 17 Order to clarify four aspects of the opinion, and thereby advise Plaintiff which claims and allegations he may assert in his Second Amended Complaint. [Doc. No. 37.] Plaintiff desires clarification and amendment "to avoid any argument by defendants that the Court's September 17 Order has now finalized the four enumerated matters as 'law of the case' on the grounds that a motion for reconsideration was not filed by Plaintiff." [Id. at p.7.] Specifically, Plaintiff requests the Court amend its Order to state the following:

(i) The Court's dismissal of Plaintiff's state-based claims for breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, and unjust enrichment with prejudice, does not foreclose Plaintiff from alleging violations of ERISA under federal common law in his Second Amended Complaint;

(ii) Plaintiff is permitted to plead contractual consequential damages in his Second Amended Complaint;

(iii) The Nemec decision does not estop Plaintiff from pleading any facts; and

(iv) Plaintiff may plead that the information as to the reversal of defendants' policies requesting "split up and sale" was material. [Doc. No. 37, p.2-3.]

Defendants oppose any amendment to the existing Order. [Doc. No. 41.]

LEGAL STANDARD

Federal Rule of Civil Procedure 54(b) provides:

When an action presents more than one claim for relief . . . or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.

Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment ...


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