Western and Southern Life Insurance Company et al v. Countrywide Financial Corp. et al

MEMORANDUM in Support of MOTION for Reconsideration re Order,,,,, 203 , Order on Motion to Dismiss Case, Order on Motion for Reconsideration,,,,,,,,,,,,,,,,,,,,,,,,, 246 MOTION for Reconsideration re Order,,,,, 203 , Order on Motion to Dismiss Case, Order on Motion for Reconsideration,,,,,,,,,,,,,,,,,,,,,,,,, 246 MOTION for Reconsideration re Order,,,,, 203 , Order on Motion to Dismiss Case, Order on Motion for Reconsideration,,,,,,,,,,,,,,,,,,,,,,,,, 246 248

35 Cited authorities

Foman v. Davis
371 U.S. 178 (1962) Cited 28,803 times 4 Legal Analyses
Holding that an appeal was improperly dismissed when the record as a whole — including a timely but incomplete notice of appeal and a premature but complete notice — revealed the orders petitioner sought to appeal
Lopez v. Smith
203 F.3d 1122 (9th Cir. 2000) Cited 24,023 times 1 Legal Analyses
Holding that a pro se litigant must be given leave to amend his complaint if it appears at all possible that the plaintiff can correct the deficiencies in the complaint
Boyle v. United States
556 U.S. 938 (2009) Cited 1,144 times 9 Legal Analyses
Holding that a RICO enterprise "need not have a hierarchical structure or a 'chain of command'; decisions may be made on an ad hoc basis and by any number of methods — by majority vote, consensus, a show of strength, etc."
Blum v. Yaretsky
457 U.S. 991 (1982) Cited 2,801 times 7 Legal Analyses
Holding that nursing home is not a state actor in part because provision of nursing home services is not a traditional and exclusive sovereign function
Eminence Capital, LLC v. Aspeon, Inc.
316 F.3d 1048 (9th Cir. 2003) Cited 4,925 times 1 Legal Analyses
Holding that the district court abused its discretion because "[d]ismissal with prejudice and without leave to amend is not appropriate unless it is clear on de novo review that the complaint could not be saved by amendment"
Vess v. Ciba-Geigy Corp. USA
317 F.3d 1097 (9th Cir. 2003) Cited 4,224 times 3 Legal Analyses
Holding that the Rule 9(b) pleading standards apply to California CLRA, FAL, and UCL claims because, though fraud is not an essential element of those statutes, a plaintiff alleges a fraudulent course of conduct as the basis of those claims
Swartz v. KPMG LLP
476 F.3d 756 (9th Cir. 2007) Cited 2,884 times 3 Legal Analyses
Holding that “[t]o the extent Swartz seeks a declaration of defendants' liability for damages sought for his other causes of action,” claim must be dismissed as “merely duplicative”
American Pipe Construction Co. v. Utah
414 U.S. 538 (1974) Cited 2,123 times 162 Legal Analyses
Holding the commencement of a class action "suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action"
School District No. 1J, Multnomah County v. ACandS, Inc.
5 F.3d 1255 (9th Cir. 1993) Cited 4,802 times 2 Legal Analyses
Holding that the "overwhelming weight of authority is that the failure to file documents in an original motion or opposition does not turn the late filed documents into 'newly discovered evidence'" for a motion for reconsideration
Gratz v. Bollinger
539 U.S. 244 (2003) Cited 430 times 17 Legal Analyses
Holding that the "administrative challenges" of "providing individualized consideration" do not justify bypassing "narrow tailor[ing]"
Rule 15 - Amended and Supplemental Pleadings
Fed. R. Civ. P. 15 Cited 91,180 times 91 Legal Analyses
Finding that, per N.Y. C.P.L.R. § 1024, New York law provides a more forgiving principle for relation back in the context of naming John Doe defendants described with particularity in the complaint
Rule 60 - Relief from a Judgment or Order
Fed. R. Civ. P. 60 Cited 53,853 times 147 Legal Analyses
Granting relief from the operation of a judgment
Rule 58 - Entering Judgment
Fed. R. Civ. P. 58 Cited 18,528 times 9 Legal Analyses
Recognizing that, after a jury verdict, the Court must enter judgment "in a separate document"
Section 2305.19 - Saving in case of reversal
Ohio Rev. Code § 2305.19 Cited 828 times
Saving statute triggered when "the plaintiff fails otherwise than upon the merits"
Section 1707.44 - Prohibited acts
Ohio Rev. Code § 1707.44 Cited 127 times
Prohibiting false representations in the sale of securities
Section 1707.41 - Civil liability of seller for fraud
Ohio Rev. Code § 1707.41 Cited 52 times 1 Legal Analyses
Relying on written circular, prospectus, or advertisement and sustaining damages due to false material statement therein or omission of material facts

Western and Southern Life Insurance Company et al v. Countrywide Financial Corp. et al

35 Cited authorities

Holding that an appeal was improperly dismissed when the record as a whole — including a timely but incomplete notice of appeal and a premature but complete notice — revealed the orders petitioner sought to appeal

Holding that a pro se litigant must be given leave to amend his complaint if it appears at all possible that the plaintiff can correct the deficiencies in the complaint

Holding that a RICO enterprise "need not have a hierarchical structure or a 'chain of command'; decisions may be made on an ad hoc basis and by any number of methods — by majority vote, consensus, a show of strength, etc."

Holding that nursing home is not a state actor in part because provision of nursing home services is not a traditional and exclusive sovereign function

Holding that the district court abused its discretion because "[d]ismissal with prejudice and without leave to amend is not appropriate unless it is clear on de novo review that the complaint could not be saved by amendment"

Holding that the Rule 9(b) pleading standards apply to California CLRA, FAL, and UCL claims because, though fraud is not an essential element of those statutes, a plaintiff alleges a fraudulent course of conduct as the basis of those claims

Holding that “[t]o the extent Swartz seeks a declaration of defendants' liability for damages sought for his other causes of action,” claim must be dismissed as “merely duplicative”

Holding the commencement of a class action "suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action"

Holding that the "overwhelming weight of authority is that the failure to file documents in an original motion or opposition does not turn the late filed documents into 'newly discovered evidence'" for a motion for reconsideration

Holding that the "administrative challenges" of "providing individualized consideration" do not justify bypassing "narrow tailor[ing]"

Finding that, per N.Y. C.P.L.R. § 1024, New York law provides a more forgiving principle for relation back in the context of naming John Doe defendants described with particularity in the complaint

Granting relief from the operation of a judgment

Recognizing that, after a jury verdict, the Court must enter judgment "in a separate document"

Saving statute triggered when "the plaintiff fails otherwise than upon the merits"

Prohibiting false representations in the sale of securities

Relying on written circular, prospectus, or advertisement and sustaining damages due to false material statement therein or omission of material facts