City Pension Fund for Firefighters and Police Officers in the City of Miami Beach v. Aracruz Celulose S.A. et al

MEMORANDUM OF LAW re MOTION to Dismiss 30 Amended Complaint /Defendant Aracruz Celulose S.A.'s Motion to Dismiss the Amended Class Action Complaint for Violation of the Federal Securities Laws MOTION to Dismiss 30 Amended Complaint /Defendant Aracruz Celulose S.A.'s Motion to Dismiss the Amended Class Action Complaint for Violation of the Federal Securities Laws

67 Cited authorities

Ashcroft v. Iqbal
556 U.S. 662 (2009) Cited 263,882 times 281 Legal Analyses
Holding court need not credit "mere conclusory statements" in complaint
Bell Atl. Corp. v. Twombly
550 U.S. 544 (2007) Cited 277,112 times 369 Legal Analyses
Holding that allegations of conduct that are merely consistent with wrongdoing do not state a claim unless "placed in a context that raises a suggestion of" such wrongdoing
Tellabs v. Makor Issues Rights
551 U.S. 308 (2007) Cited 9,462 times 105 Legal Analyses
Holding that a strong inference is one that is "cogent and at least as compelling as any opposing inference"
Dura Pharmaceuticals v. Broudo
544 U.S. 336 (2005) Cited 3,618 times 67 Legal Analyses
Holding that the securities statutes have a private of action “not to provide investors with broad insurance against market losses, but to protect them against those economic losses that misrepresentations actually cause”
Murphy Brothers, Inc. v. Michetti Pipe Stringing
526 U.S. 344 (1999) Cited 2,795 times 7 Legal Analyses
Holding that, where defendant was faxed a courtesy copy of a filed complaint, defendant's time to remove is not triggered "by mere receipt of the complaint unattended by any formal service"
ATSI Communications, Inc. v. Shaar Fund, Ltd.
493 F.3d 87 (2d Cir. 2007) Cited 3,988 times 6 Legal Analyses
Holding that because "a plaintiff must show . . . a primary violation by the controlled person" in order to "establish a prima facie case of control[-]person liability," a plaintiff who "fails to allege any primary violation . . . cannot establish control[-]person liability"
Santa Fe Industries, Inc. v. Green
430 U.S. 462 (1977) Cited 1,077 times 6 Legal Analyses
Holding that the Securities Exchange Act is limited in scope to its textual provisions and does not conflict with state law regarding corporate misconduct, particularly corporate mismanagement
Sinaltrainal v. Coca-Cola Co.
578 F.3d 1252 (11th Cir. 2009) Cited 1,189 times 4 Legal Analyses
Holding that a complaint fails to state a claim unless the well-pled factual allegations of the complaint nudge the claims across the line from conceivable to plausible
Rombach v. Chang
355 F.3d 164 (2d Cir. 2004) Cited 1,438 times 5 Legal Analyses
Holding that complaint may establish scienter through facts showing that defendants "had both motive and opportunity to commit fraud"
Shields v. Citytrust Bancorp, Inc.
25 F.3d 1124 (2d Cir. 1994) Cited 1,860 times 5 Legal Analyses
Holding that scienter cannot be "base[d] . . . on speculation and conclusory allegations"
Rule 12 - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
Fed. R. Civ. P. 12 Cited 358,269 times 949 Legal Analyses
Granting the court discretion to exclude matters outside the pleadings presented to the court in defense of a motion to dismiss
Rule 4 - Summons
Fed. R. Civ. P. 4 Cited 72,489 times 129 Legal Analyses
Holding that if defendant is not served within 90 days after the complaint is filed, the court—on a motion, or on its own following notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made by a certain time
Rule 9 - Pleading Special Matters
Fed. R. Civ. P. 9 Cited 39,914 times 332 Legal Analyses
Requiring that fraud be pleaded with particularity
Section 78u-4 - Private securities litigation
15 U.S.C. § 78u-4 Cited 7,674 times 52 Legal Analyses
Granting courts authority to permit discovery if necessary "to preserve evidence or to prevent undue prejudice to" a party
Section 77k - Civil liabilities on account of false registration statement
15 U.S.C. § 77k Cited 2,133 times 86 Legal Analyses
Holding liable for a false registration statement "every person who was a director of . . . or partner in the issuer" at time of filing
Section 311 - Personal service upon a corporation or governmental subdivision
N.Y. C.P.L.R. § 311 Cited 1,414 times
Providing that personal service on a New York corporation can be accomplished by delivering the summons to an "officer, director, managing or general agent, or cashier or assistant cashier" of the corporation
Section 78u-5 - Application of safe harbor for forward-looking statements
15 U.S.C. § 78u-5 Cited 1,299 times 22 Legal Analyses
Listing as an exclusion from the safe harbor "forward-looking statement in connection with a going private transaction"
Section 48.081 - Service on a domestic corporation or registered foreign corporation
Fla. Stat. § 48.081 Cited 390 times 5 Legal Analyses
Finding that the defendant was properly served because process was served on the co-resident of the registered agent of the corporation at the registered agent's residence and that co-resident was 15 years of age or older and informed of the contents of the process.

City Pension Fund for Firefighters and Police Officers in the City of Miami Beach v. Aracruz Celulose S.A. et al

67 Cited authorities

Holding court need not credit "mere conclusory statements" in complaint

Holding that allegations of conduct that are merely consistent with wrongdoing do not state a claim unless "placed in a context that raises a suggestion of" such wrongdoing

Holding that a strong inference is one that is "cogent and at least as compelling as any opposing inference"

Holding that the securities statutes have a private of action “not to provide investors with broad insurance against market losses, but to protect them against those economic losses that misrepresentations actually cause”

Holding that, where defendant was faxed a courtesy copy of a filed complaint, defendant's time to remove is not triggered "by mere receipt of the complaint unattended by any formal service"

Holding that because "a plaintiff must show . . . a primary violation by the controlled person" in order to "establish a prima facie case of control[-]person liability," a plaintiff who "fails to allege any primary violation . . . cannot establish control[-]person liability"

Holding that the Securities Exchange Act is limited in scope to its textual provisions and does not conflict with state law regarding corporate misconduct, particularly corporate mismanagement

Holding that a complaint fails to state a claim unless the well-pled factual allegations of the complaint nudge the claims across the line from conceivable to plausible

Holding that complaint may establish scienter through facts showing that defendants "had both motive and opportunity to commit fraud"

Holding that scienter cannot be "base[d] . . . on speculation and conclusory allegations"

Granting the court discretion to exclude matters outside the pleadings presented to the court in defense of a motion to dismiss

Holding that if defendant is not served within 90 days after the complaint is filed, the court—on a motion, or on its own following notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made by a certain time

Requiring that fraud be pleaded with particularity

Granting courts authority to permit discovery if necessary "to preserve evidence or to prevent undue prejudice to" a party

Holding liable for a false registration statement "every person who was a director of . . . or partner in the issuer" at time of filing

Providing that personal service on a New York corporation can be accomplished by delivering the summons to an "officer, director, managing or general agent, or cashier or assistant cashier" of the corporation

Listing as an exclusion from the safe harbor "forward-looking statement in connection with a going private transaction"

Finding that the defendant was properly served because process was served on the co-resident of the registered agent of the corporation at the registered agent's residence and that co-resident was 15 years of age or older and informed of the contents of the process.