The opinion of the court was delivered by: STERLING JOHNSON, JR.
Plaintiff Joel Gerber, on his own behalf and on behalf of all others similarly situated, commenced this class action against Defendants Computer Associates International, Inc., LWB Merge, Inc., Charles B. Wang, Anthony B. Wang, Sanjay Kumar (collectively "Computer Associates") and Jack M. Berdy for violation of various securities regulations. In an order dated January 21, 1993, this Court dismissed Count II of the original complaint as against all defendants and Count I of the original complaint as against Berdy. A second order dated February 22, 1993 dismissed Count III as against Berdy and granted Plaintiff leave to file an amended complaint which he did on April 19, 1993. Defendant Berdy now moves to dismiss the amended complaint as against him and for sanctions against Plaintiff's attorneys. For the reasons set forth below, Berdy's motion is denied in its entirety.
For the purposes of deciding this motion, the Court takes all the allegations contained in the Amended Complaint to be true. In that the factual allegations in the original complaint remain as previously stated and are now only further detailed in the Amended Complaint, the Court will not repeat the facts of this case herein but will assume familiarity with the facts as set forth in the Court's opinion dated January 21, 1993.
I. Prior Dismissal of Counts I and II
In its previous orders this Court dismissed Count I as against Berdy, Count II as against all defendants, and Count III as against Berdy with leave to replead. Plaintiff has submitted an amended complaint that continues to set forth those counts as they were in the original complaint but with parenthetical commentary noting the Court's dismissals. Plaintiff contends that this recitation with parentheticals is "to make clear that [the counts] were voluntarily dismissed by the Court and that plaintiff did not voluntarily drop them." Pl. Mem. of Law in Opp. to Def. Berdy's Motion to Dismiss Count III of the Amended Class Action Complaint at 2 n.1.
Such a format serves no purpose but to confuse and will not be countenanced by this Court. Once a count is dismissed in its entirety or against certain parties it no longer should appear against those parties. Any needed clarification can be had by consulting the record of the case which will clearly show that this Court ordered the dismissal of the counts.
II. Motion to Dismiss Count III
Plaintiff alleges that the Defendants violated Sections 10(b) and 14(e) of the 1934 Securities and Exchange Act ("Exchange Act") and Rule 10b-5. According to the Amended Complaint, Defendants defrauded Plaintiff by making various untrue statements of material facts and omitting certain material facts in connection with the Tender Offer. Defendant Berdy has moved to dismiss this count pursuant to Rule 12(b)(6) and Rule 9(b) of the Federal Rules of Civil Procedure.
A. Rule 12(b)(6) Standard
The Court will examine the Plaintiff's claims under Rule 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990). The court must accept the facts as alleged in the complaint as true. Easton v. Sundram, 947 F.2d 1011 1014-15 (2d Cir. 1991). A motion to dismiss must be denied "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." ...