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Barker v. Gottlieb

United States District Court, D. Hawaii

October 24, 2014

CHARLES BARKER III, Plaintiff,
v.
JOSHUA L. GOTTLIEB, JONATHAN DUBOWSKY, DONALD BORNEMAN, CHARLES HALL, SCOTT HARRIS, THE VALUE EXCHANGE ADVISORS, also known as/doing business as TVXA, GEMCO-PACIFIC ENERGY LLC, aka GPE and ROES 1-25, Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT

LESLIE E. KOBAYASHI, District Judge.

On July 15, 2014, Defendants Joshua L. Gottlieb, Jonathan Dubowsky, Donald Borneman, Charles Hall, Scott Harris, the Value Exchange Advisors ("TVXA"), and GEMCo-Pacific Energy LLC (collectively "Defendants") filed their Motion to Dismiss Plaintiff's Third Amended Complaint ("Motion"). [Dkt. no. 94.] Pro se Plaintiff Charles Barker III ("Plaintiff") filed his memorandum in opposition on August 22, 2014, and Defendants filed their reply on September 22, 2014. [Dkt. nos. 97, 98.] On September 24, 2014, the Court issued an entering order finding this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawaii ("Local Rules"). [Dkt. no. 99.] After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Defendants' Motion is HEREBY GRANTED for the reasons set forth below.

BACKGROUND

The relevant factual and procedural background of this case is set forth in this Court's October 16, 2013 Order Granting in Part and Denying in Part Defendants' Motion for Judgment on the Pleadings ("10/16/13 Order"), and this Court's May 28, 2014 Order Granting in Part and Denying in Part Defendants' Motion to Dismiss Second Amended Complaint ("5/28/14 Order"). [Dkt. nos. 44, 88.[1] This Court will only repeat the background that is relevant to the instant Motion.

Plaintiff's Second Amended Complaint, filed January 16, 2014, [dkt. no. 53, ] alleged the following claims: fraud ("Count I"); breach of fiduciary responsibility ("Count II"); professional misconduct ("Count III"); violations of United States securities laws ("Count IV"); misrepresentation ("Count V"); malfeasance ("Count VI"); misappropriation of corporate funds ("Count VII"); breach of contract ("Count VIII"); anticipatory breach of contract ("Count IX"); theft of real property purchase contract ("Count X"); theft of intellectual property ("Count XI"); theft of work product ("Count XII"); negligence ("Count XIII"); tortious interference ("Count XIV"); and violation of interstate commerce laws ("Count XV").

In the 5/28/14 Order, this Court:

•dismissed with prejudice the portion of Count I alleging fraud regarding the future availability of financing, and Counts II, III, IV, V, VIII, IX, X, XI, XII, and XIII; and

•dismissed without prejudice the portion of Count I alleging fraudulent alteration of agreements, Counts VI, VII, XIV, and XV.

2014 WL 2215920, at *14.

Plaintiff filed his Third Amended Complaint on June 27, 2014. [Dkt. no. 89.] The first fifteen claims in the Third Amended Complaint ("Amended Count I" through "Amended Count XV") allege the same claims as Counts I through XV of the Second Amended Complaint. Plaintiff also added a claim titled "Evidence Suppression & Obstruction of Justice" ("Amended Count XVI") and a claim alleging perjury ("Amended Count XVII"). See id. at pg. 2.

In the instant Motion, Defendants ask this Court to dismiss all of Plaintiff's claims in the Third Amended Complaint with prejudice.

DISCUSSION

I. Claims Previously Dismissed with Prejudice

Defendants first argue that this Court should disregard Plaintiff's restatement of claims that the 5/28/14 Order dismissed with prejudice. In the Third Amended Complaint, Plaintiff acknowledges that the 5/28/14 Order dismissed many of the claims in the Second Amended Complaint with prejudice, but he states that he objects to the rulings in the 5/28/14 Order. He has restated those claims so that they will be "preserved for the record on appeal." [Third Amended Complaint at ¶ 1.] First, Plaintiff did not file a motion for reconsideration of the 5/28/14 Order. This Court declines to construe Plaintiff's statements in the Third Amended Complaint as a motion for reconsideration.

In addition, the Ninth Circuit has stated that, "[f]or claims dismissed with prejudice and without leave to amend, we will not require that they be repled in a subsequent amended complaint to preserve them for appeal." Lacey v. Maricopa Cnty. , 693 F.3d 896, 928 (9th Cir. 2012) (en banc). Only claims that are voluntarily dismissed are deemed waived if the plaintiff fails to replead them in the amended complaint. Id . ...


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