Alpha Capital Anstalt v. New Generation Biofuels, Inc et al
| Alpha Capital Anstalt |
| David Goebel, Andrea Festuccia, John E. Mack, Lee S. Rosen, New Generation Biofuels, Inc, David A. Gillespie, Cary J. Claiborne and Diane Saglio |
| 1:2013cv05586 |
| August 9, 2013 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of U.S. |
| John G. Koeltl |
| Securities/Commodities |
| 15 U.S.C. ยง 78 m(a) Securities Exchange Act |
| Plaintiff |
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Filing
56
OPINION & ORDER re: 36 MOTION to Dismiss filed by Lee S. Rosen, 32 MOTION to Dismiss First Amended Complaint filed by Andrea Festuccia, David A. Gillespie, Diane Saglio, Cary J. Claiborne, John E. Mack, David Goebel. Fo r the foregoing reasons, Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff's first cause of action for Section 10(b) violations is adequately pled, except with respect to Defendant Gillespie, against whom Plai ntiff's 10(b) claims are DISMISSED. Plaintiff's second cause of action for common law fraud is adequately pled. Plaintiff's third cause of action for negligent misrepresentation is DISMISSED as against all Defendants except Rosen a nd Saglio. Plaintiff's fourth cause of action for Section 20(a) violations is adequately pled, except with respect to NGBG, against whom Plaintiff's 20(a) claims are DISMISSED. Plaintiff's fifth cause of action for breach of fiduc iary duty is DISMISSED as against Gillespie, Claiborne and NGBF, but otherwise is adequately pled. Plaintiff's sixth cause of action for conspiracy is DISMISSED as against all Defendants except for Rosen and Festuccia. Plaintiff's sev enth cause of action for aiding and abetting fraud is adequately pled. Plaintiff's eighth cause of action for Section 18 violations is DISMISSED as against all Defendants. Because Plaintiff has already amended its original complaint once af ter Defendants' motions to dismiss were filed, and because the Court finds that further amendment would be futile, In re Longtop Fin. Technologies Ltd., 939 F. Supp. 2d at 379, Plaintiff's request for permission to file a second amended complaint is DENIED. The Clerk of the Court is respectfully directed to terminate Dkts. 32 and 36. (Signed by Judge Valerie E. Caproni on 11/18/2014) (mro)
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