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Peter Rohde v. Terry L. Trantina and Stern & Kilcullen

February 15, 2011

PETER ROHDE
v.
TERRY L. TRANTINA AND STERN & KILCULLEN, LLC



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Title:

Kathy Peterson Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO DISMISS

Before the Court is a Motion to Dismiss Plaintiffs' First Amended Complaint filed by Defendants Terry L. Trantina and Stern & Kilcullen, LLC in the above-captioned case (the "Motion"). The Court finds the matter appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering the moving, opposing, and replying papers thereon, and for reasons set forth below, the Court hereby GRANTS in part and DENIES in part Defendants' Motion to Dismiss.

I. Background

In March of 2006, Plaintiffs Peter Rohde and Science & Ingredients, Inc. ("Plaintiffs") secured Defendants Terry L. Trantina and Stern & Kilcullen, LLC ("Defendants") to represent Plaintiffs in an arbitration proceeding. Plaintiffs sought to recover damages for the operation and termination of Lipoid U.S.A., LLC, a joint venture between Science & Ingredients, Inc. and Lipoid,

Peter Rohde was the real party in interest and agent for Science & Ingredients, Inc.

According to Plaintiffs, Defendants engaged in negligent conduct throughout the course of the arbitration proceedings.First Amended Complaint ("FAC") ¶ 3. Defendants allegedly failed to properly prepare for direct examination and cross-examination, thereby causing Plaintiffs to lose at Id. Plaintiffs also allege that Defendants took advantage of Plaintiffs by "fail[ing] to disclose the risks to [Plaintiffs] in the eleventh hour change of the fee agreement." Id. at 5.

In light of this alleged wrongdoing, Plaintiffs filed suit in Orange County Superior Court. Defendant removed the action to federal court. Following removal, Plaintiffs filed their FAC on November 17, 2010 asserting claims for (1) Professional Malpractice and (2) Breach of Fiduciary Duty. Defendant now moves to dismiss the FAC on the grounds that it fails to state a claim upon which relief

II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Dismissal for failure to state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove "no set of facts" in support of its claim that would entitle it to relief. Bell Atl. Corp. v. Twombly , 127 S. Ct. 1955, 1968 (2007) (abrogating Conley v. Gibson , 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957)). In order for a complaint to survive a 12(b)(6) motion, it must state a claim for relief that is plausible on its face. Ashcroft v. , 129 S.Ct. 1937, 1950 (2009). A claim for relief is facially plausible when the Plaintiff pleads enough facts, taken as true, to allow a court to draw a reasonable inference that the defendant is liable for the alleged conduct. Id. at 1949. If the facts only allow a court to draw a reasonable inference that the defendant is possibly liable, then the complaint must be dismissed. Id. Mere legal conclusions are not to be accepted as true and do not establish a plausible claim for relief. Id. at 1950. Determining whether a complaint states a plausible claim for relief will be a context-specific task requiring the court to draw on its judicial experience and common sense. Id.

In evaluating a 12(b)(6) motion, review is "limited to the contents of the complaint." Clegg v. Cult Awareness Network , 18 F.3d 752, 754 (9th Cir. 1994). However, exhibits attached to the complaint, as well as matters of public record, may be considered in determining whether dismissal was proper without converting the motion to one for summary judgment. See Parks School of Business, Inc. , 51 F.3d 1480, 1484 (9th Cir. 1995); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Further, a court may consider documents "on which the complaint 'necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the Plaintiffss' claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) Marder v. Lopez , 450 ...


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