Case No.: 10-CV-01455-LHKORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS
U n i t e d S t a t e s D i s t r i c t C o u r t
F o r t h e N o r t h e r n D i s t r i c t o f C a l i f o r n i a
et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201, as well as a number of New York state laws. Defendant McAfee moves to dismiss the entire FAC.
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legalsufficiency of a complaint.
Navarro v. Block
, 250 F.3d 729, 732 (9th Cir. 2001). In consideringwhether the complaint is sufficient to state a claim, the court must accept as true all of the factualallegations contained in the complaint.
Ashcroft v. Iqbal
, 129 S.Ct. 1937, 1949 (2009). However,the court need not accept as true “allegations that contradict matters properly subject to judicialnotice or by exhibit” or “allegations that are merely conclusory, unwarranted deductions of fact, orunreasonable inferences.”
St. Clare v. Gilead Scis., Inc.
In re Gilead Scis. Sec. Litig.
), 536 F.3d1049, 1055 (9th Cir. 2008). While a complaint need not allege detailed factual allegations, it “mustcontain sufficient factual matter, accepted as true, to “‘state a claim to relief that is plausible on itsface.’”
, 129 S.Ct. at 1949 (quoting
Bell Atlantic Corp. v. Twombly
, 550 U.S. 544, 570(2007)). A claim is facially plausible when it “allows the court to draw the reasonable inferencethat the defendant is liable for the misconduct alleged.”
, 129 S.Ct. at 1949.Additionally, claims sounding in fraud are subject to the heightened pleading requirementsof Federal Rule of Civil Procedure 9(b). Under the federal rules, a plaintiff alleging fraud “muststate with particularity the circumstances constituting fraud.” Fed. R. Civ. Pro. 9(b). To satisfy thisstandard, the allegations must be “specific enough to give defendants notice of the particularmisconduct which is alleged to constitute the fraud charged so that they can defend against thecharge and not just deny that they have done anything wrong.”
Semegen v. Weidner
, 780 F.2d 727,731 (9th Cir. 1985). Thus, claims sounding in fraud must allege “an account of the time, place, andspecific content of the false representations as well as the identities of the parties to themisrepresentations.”
Swartz v. KPMG LLP
, 476 F.3d 756, 764 (9th Cir. 2007).If a court grants a motion to dismiss, leave to amend should be granted unless the pleadingcould not possibly be cured by the allegation of other facts.
Lopez v. Smith
, 203 F.3d 1122, 1130(9th Cir. 2000).
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