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Austin Park v. Morgan Stanley & Co.

February 22, 2012


The opinion of the court was delivered by: Hon. Otis D. Wright II United States District Judge



Pending before the Court is Defendants Morgan Stanley & Co., Inc.; Stanley Smith Barney LLC; and Citigroup Global Markets, Inc.'s ("Defendants") January 5, 2012 Motion to Dismiss Plaintiff Austin Park's ("Plaintiff") Complaint. (Dkt. No. 20.) Plaintiff filed an Opposition on January 23, 2012 (Dkt. No. 33), to which Defendants filed a Reply on January 30, 2012 (Dkt. No. 34). Having carefully considered the papers filed in support of and in opposition to the instant Motions, the Court deems the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C. D. Cal. L. R. 7-15. For the reasons discussed below, Defendants' Motion is GRANTED.


Plaintiff brings this class action suit pursuant to Federal Rule of Civil Procedure 23 against Defendants alleging breach of contract and unlawful, deceptive, and/or unfair business practices under California Business and Professional Code section 17200. Specifically, Plaintiff asserts that Defendants withheld commissions owed to its employees, the proposed class in this case. (Compl. ¶ 1.)

Plaintiff's proposed class is composed of financial advisors employed by Defendants. (Id.) As a financial advisor, Plaintiff sold variable annuities and other financial products to investors in exchange for commission payments from Defendants. (Compl. ¶ 6.) Plaintiff asserts that these commissions were determined by the "applicable commission grid," which was included in an unspecified "written agreement" between the parties. (Compl. ¶ 32.) Further, Plaintiff states that "Defendants' compensation guides and agreements with Plaintiff" represented that commissions would be paid to financial advisors based on the entire amount of compensation received by Defendants from the sale of financial products. (Compl. ¶ 25.) Nevertheless, Plaintiff contends that Defendants "skim[med off] a portion of the compensation paid by the vendor before applying the remaining amount to the commission grid," thereby reducing the commission payments it paid to Plaintiff and the proposed class. (Id.)

Pursuant to the foregoing, Plaintiff alleges that Defendants "knowingly created and maintained policies, practices, and customs that denied employees earned commission payments for the sale of certain financial products." (Compl. ¶ 2.) Plaintiff asserts that these "policies, practices, and customs" resulted in the Defendant's unjust enrichment and breach of contract. (Id.)


A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a complaint. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For a complaint to sufficiently state a claim, its "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. Dismissal under Rule 12(b)(6) can be based on "the lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). While specific facts are not necessary so long as the complaint gives the defendant fair notice of the claim and the grounds upon which the claim rests, Erickson v. Pardus, 551 U.S. 89, 93 (2007), a complaint must nevertheless "contain 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) (internal quotation marks omitted). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement of relief." Id. (internal citation and quotation marks omitted). The determination whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

When considering a Rule 12(b)(6) motion, a court is generally limited to considering material within the pleading and must construe "[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable to [the plaintiff]." Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (citing Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)). A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

As a general rule, leave to amend a complaint that has been dismissed should be freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).


Plaintiff's Complaint alleges claims for breach of contract and violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code ยง 17200. Defendant moves to dismiss Plaintiff's Complaint in ...

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