Filed August 18, 2008
Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss courts “are not bound to accept as true a legal conclusion couched as a factual allegation”); Kendall, 2005 U.S. Dist. LEXIS 21449, at *5 (holding court is not “bound to accept as true conclusory allegations of law or legal conclusions couched as a factual allegation.”); DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999). To the extent that Copart relies on AASC’s status as a joint venture to allege a conspiracy, the allegations are plainly insufficient.
Filed July 12, 2007
Plaintiffs fail to mention that “the price of entry, even to discovery, is for the plaintiff to allege a factual predicate concrete enough to warrant further proceedings, which may be costly and burdensome.” DM Research, Inc. v. College of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999); DeShazier v. Williams, Case No. CV F 06-0591, 2006 U.S. Dist. LEXIS 64906, *18 (E.D. Cal. Aug. 29, 2006) (same). In addition to the defects in plaintiffs’ legal theories discussed above
Filed November 22, 2016
Conclusory allegations in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing expedition.” Id. (quoting DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999)). ARGUMENT I. Plaintiff’s Claims do not Satisfy the Threshold Plausibility Standard.
Filed September 9, 2016
Space, Inc. v. Internet Corp. for Assigned Names and Nos., 795 F.3d 1124, 1129 (9th Cir. 2015). “[T]erms like ‘conspiracy, or even ‘agreement,’ are border-line: they might well be sufficient in conjunction with a more specific allegation . . . but a court is not required to accept such terms as a sufficient basis for a complaint.” Twombly, 550 U.S. at 557 (quoting DM Research, Inc. v. College of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999)). Instead, the Court should undertake a “context-specific analysis involving the Court’s ‘judicial experience and common sense
Filed August 5, 2016
9 Dongwon Enterprise does not move to dismiss the Winn-Dixie Complaint because it has not been properly served. However, these arguments apply equally to the Winn-Dixie Complaint, which shares many verbatim passages with the DPP and CFP Complaints. Case 3:16-cv-00051-JLS-MDD Document 21-1 Filed 08/05/16 Page 10 of 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 ATTORNEYS AT LAW SAN FRANCISCO MEM. P. & A. IN SUPP. OF DONGWON MOT. TO DISMISS 15-MD-2670-JLS (MDD) Corp. for Assigned Names and Nos., 795 F.3d 1124, 1129 (9th Cir. 2015). “[T]erms like ‘conspiracy, or even ‘agreement,’ are border-line: they might well be sufficient in conjunction with a more specific allegation . . . but a court is not required to accept such terms as a sufficient basis for a complaint.” Twombly, 550 U.S. at 557 (quoting DM Research, Inc. v. College of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999)). Instead, the Court should undertake a “context-specific analysis involving the Court’s ‘judicial experience and common sense.’”
Filed February 5, 2015
C-09-2755 RMW, 2012 WL 70644, at *5 (N.D. Cal. Jan. 9, 2012) (Whyte, J.) (dismissing Sherman Act claims where the alleged scheme “does not make ‘economic sense’”) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); see also DM Research, Inc. v. College of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999) (affirming dismissal of complaint that alleged “highly implausible” conspiracy). Second, the premise of Plaintiff’s theory regarding Ask Jeeves’ supposed motivation for entering into the alleged “agreement” also does not withstand scrutiny.
Filed December 15, 2014
Finally, allegations of an agreement in violation of the antitrust laws must be “‘plausible’ in light of basic economic principles.” William O. Gilley Enters., 588 F.3d at 662; see also DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999) (upholding dismissal of antitrust complaint where alleged conspiracy was “highly implausible”) (cited with approval in Twombly, 550 U.S. at 557). Ryan and Rau have not alleged facts suggesting a plausible reason for Microsoft to enter into the alleged agreements.
Filed July 11, 2014
Id. “An allegation of parallel conduct is thus much like a naked assertion of conspiracy in a § 1 complaint: it gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of “entitle[ment] to relief” Id. at 557; DM Research, Inc., 170 F. 3d at 56.
Filed May 1, 2014
If FMR LLC were a party to any of those agreements, Plaintiffs likely would have pleaded FMR LLC’s fiduciary status. But, because FMR LLC is not a party to those agreements, Plaintiffs have no reasonable basis for naming FMR LLC as a defendant in this case. See, e.g., DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) (“[T]he price of entry, even to discovery, is for the plaintiff to allege a factual predicate concrete enough to warrant further proceedings, which may be costly and burdensome. Conclusory allegations in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing expedition.”)
Filed February 18, 2012
Briehl v. General Motors Corp., 172 F.3d 623, 627-628 (8th Cir. 1999); DM Research, Inc. v. College of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999). Importantly, to “survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949,