United States District Court, S.D. California
ORDER SUBSTITUTING COUNSEL; ORDER DENYING MOTION TO
DISMISS; AND ORDER TO SHOW CAUSE RE: FAILURE TO SERVE AND
FAILURE TO PROSECUTE CLAIMS AGAINST DEFENDANT TIMO
LARRY ALAN BURNS, United States District Judge.
9, 2016, Jeffrey Albregts terminated his representation of
Defendants James Yiu Lee (“JYL”), Connie
Castellanos, and Larissa Ettore. Currently, Matthew Faust is
the only attorney representing JYL. JYL has now filed a
motion to substitute himself in, pro se, in place of
Faust. (Docket nos. 82, 83.) That motion is GRANTED. JYL is
now proceeding pro se. Connie Castellanos and
Larissa Ettore continue to be represented by Faust.
fact that JYL is now proceeding pro se should not be
taken by the parties as a reason to delay preparation for
trial. The parties should comply with the scheduling order
and diligently take action to make this case ready for trial.
See Civil Local Rule 16.1(b).
have filed a motion for partial dismissal under Fed.R.Civ.P.
12(b)(6). They ask the Court to dismiss the claims by
Plaintiff S&J Lee Partners amended complaint with
prejudice. (Docket no. 66.) The parties agree that Texas law
governs Plaintiffs’ claims.
Rule12(b)(6) motion to dismiss tests the sufficiency of the
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). Under Fed.R.Civ.P. 8(a)(2), only "a short
and plain statement of the claim showing that the pleader is
entitled to relief, " is required, in order to
"give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007).
"Factual allegations must be enough to raise a right to
relief above the speculative level . . . ." Id.
at 555. "[S]ome threshold of plausibility must be
crossed at the outset" before a case is permitted to
proceed. Id. at 558 (citation omitted). The
well-pleaded facts must do more than permit the Court to
infer "the mere possibility of misconduct;" they
must show that the pleader is entitled to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
determining whether a complaint states a claim, the Court
accepts all allegations of material fact in the complaint as
true and construes them in the light most favorable to the
non-moving party. Cedars-Sinai Medical Center v. National
League of Postmasters of U.S., 497 F.3d 972, 975 (9th
Cir. 2007) (citation omitted). The Court does not weigh
evidence or make credibility determinations. Acosta v.
City of Costa Mesa, 718 F.3d 800, 828 (9th
Cir. 2013). But the Court is "not required to accept as
true conclusory allegations which are contradicted by
documents referred to in the complaint, " and does
"not . . . necessarily assume the truth of legal
conclusions merely because they are cast in the form of
factual allegations." Warren v. Fox Family
Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003)
(citations and quotation marks omitted).
allege that JYL defrauded them in connection with the sale of
securities. According to the amended complaint, JYL made
various misrepresentations that misled them into investing
through him, resulting in a total loss of about $5.5 million.
Specifically, they allege JYL:
• falsely claimed to be a bona fide investment advisor
and broker-dealer with expertise in stocks and options
trading. (Am. Compl., ¶ 73.)
• misled them into believing he had the appropriate
credentials, expertise, and licensure to be an investment
advisor and to trade on their behalf. (Id., ¶
• falsely claimed to be an attorney, a tax attorney, a
CPA, a Ph.D., a former Wall Street trader, and a former
stockbroker for the Dean Witter brokerage and ...