United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART AND DENYING IN PART SECOND
MOTION TO DISMISS
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Kamila
Bjorlin's Motion to Dismiss the Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt.
#81. Defendant Bjorlin seeks dismissal of all claims against
her on the basis that they are time-barred as she asserts
that all claims are solely-derivative of the claims
previously dismissed against former Defendant Lidingo
Holdings, LLC ("Lidingo"). Id. Plaintiff
opposes the motion, asserting that its claims are not
time-barred, and that it has adequately pled its claims
against Defendant Bjorlin in her individual capacity separate
and apart from the claims it previously brought against
Lidingo. Dkt. #83. Having reviewed the record before it, and
finding oral argument to be unnecessary on this motion, the
Court now GRANTS IN PART AND DENIES IN PART Defendant's
motion to dismiss for the reasons discussed herein.
initially filed its Complaint in the United States District
Court for the Southern District of New York. Dkt. # 1. The
matter was subsequently transferred to this Court on October
27, 2017. Dkt. #53. According to the parties:
Following an investigation, the SEC filed this action under
the antifraud and antitouting provisions of the federal
securities laws alleging Defendants Lidingo Holdings, LLC
("Lidingo"), Kamilla Bjorlin ("Bjorlin"),
Andrew Hodge ("Hodge"), Brian Nichols
("Nichols"), and Vincent Cassano
("Cassano") engaged in a scheme to promote the
stock of public companies without disclosing compensation
they received for the promotion directly or indirectly from
the issuers, and in many instances, by falsely stating they
had received no compensation at all.
The SEC has charged Defendants with violating Sections 17(a)
and 17(b) of the Securities Act of 1933 ("Securities
Act"), 15 U.S.C. §§ 77q(a) and 77q(b); and
Section 10(b) and Rule 10b-5 of the Securities Exchange Act
of 1934 ("Exchange Act"), 15 U.S.C. § 78j(b)
and 17 C.F.R. § 240.10b-5. Defendants have responded
with numerous defenses to the counts raised.
Dkt. #61 at 1-2. Defendants Lidingo and Cassano have since
been dismissed from this action. Dkts. #72 and #73. In its
prior Order dismissing Lidingo, the Court denied Plaintiff
leave to amend, and directed that, "[d]ue to the length
and complexity of the Complaint in this case,
no later than fourteen (14) days
from the date of this Order, Plaintiff shall file an
Amended Complaint in conformance with the rulings in this
Order." Dkt. #73 at 19.
then filed a Motion for Clarification of the Court's
Order of Dismissal. Dkt. #74. The Court declined to clarify
its Order, finding that Plaintiff sought "impermissible
guidance on how to file its Amended Complaint." Dkt.
#76. Plaintiff filed its Amended Complaint on June 8, 2018.
Dkt. #77. The instant motion followed.
Standard of Review
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), all allegations of material
fact must be accepted as true and construed in the light most
favorable to the nonmoving party. Cahillv. Liberty Mut.
Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However,
the Court is not required to accept as true a "legal
conclusion couched as a factual allegation."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). The Complaint "must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Id. at 678. This
requirement is met when the plaintiff "pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. Absent facial plausibility,
Plaintiffs claims must be dismissed. Twombly, 550
U.S. at 570.
the Court limits its Rule 12(b)(6) review to allegations of
material fact set forth in the Complaint, the Court may
consider documents of which it has taken judicial notice.
See F.R.E. 201; Swartz v. KPMG LLP, 476
F.3d 756, 763 (9th Cir. 2007). Defendant Bjorlin has asked to
Court to take judicial notice, as it previously did, that
Lidingo Holdings, LLC, with registered agent Kamilla Bjorlin,
was formerly registered to do business in the State of
Washington, but is now terminated. Dkt. #81 at 3. The Court
will do so, as this information is contained in the public
records maintained by the Secretary of State of the State of
Washington, and can be retrieved on the public website for
the Secretary of State of the State of Washington
Corporations division, https://www.sos.wa.gov/corps/
(last visited July 25, 2018). Defendant Bjorlin also
requests that the Court take judicial notice that Lidingo was
dissolved in Nevada on October 14, 2014. Dkt. #81 at 3.
Plaintiff does not dispute that fact. Dkt. #83 at 1, fn. 1.
Accordingly the Court also takes judicial notice of that