Opinion
No. 3:16-cv-00580-AC
09-21-2018
LAWRENCE P. CIUFFITELLI, et al., Plaintiffs, v. DELOITTE & TOUCHE LLP, et al., Defendants.
OPINION AND ORDER MOSMAN, J.,
On August 1, 2018, Magistrate Judge John V. Acosta issued his Findings and Recommendation ("F&R") [340] recommending DENYING the Motion to Dismiss filed by TD Ameritrade, Inc. [275] and the Joint Motion to Dismiss [278] filed by Duff & Phelps, LLC, Sidley Austin LLP, TD Ameritrade, Inc., Deloitte & Touche LLP, Tonkon Torp LLP, EisnerAmper LLP, and Integrity Bank & Trust and GRANTING in part and DENYING in part the individual motions to dismiss filed by Deloitte & Touche LLP [277], Sidley Austin LLP [272], and Duff & Phelps, LLC [269]. Judge Acosta also GRANTED Deloitte & Touche LLP's Motion for Judicial Notice [280].
Defendants Sidley Austin LLP, TD Ameritrade, Inc., and Duff & Phelps, LLC filed objections, and Plaintiffs responded to the objections. Defendants Deloitte & Touche LLP, EisnerAmper LLP, Integrity Bank & Trust, and Tonkon Torp LLP did not file objections.
DISCUSSION
The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination regarding those portions of the report or specified findings or recommendations as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, de novo or under any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F&R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny with which I am required to review the F&R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(1)(C).
Upon careful review, I agree with Judge Acosta's recommendations and ADOPT the Findings and Recommendation [340] as my own opinion. I confirm Judge Acosta's grant of Deliotte & Touche LLP's Request for Judicial Notice [280] and I:
(1) DENY Defendants' Joint Motion to Dismiss [278];
(2) GRANT Deloitte & Touche LLP's Motion to Dismiss [277] in part as to Plaintiffs' Claims against Deloitte for sales occurring before November 30, 2013, specifically Second Amended Complaint (SAC) ¶¶ 196(a), 197 (first sentence only), 198(a), 199(b), 200(a), and 201(a) and (b) and DENY the Motion on all other grounds;
(3) GRANT Sidley Austin LLP's Motion to Dismiss [272] in part as to claims against Sidley for sales occurring before April 5, 2013, specifically the SAC ¶¶ 197 (first sentence only), 198(a), 199(b), 200(a), and 201(a) and DENY the Motion on all other grounds;
(4) GRANT Duff & Phelps, LLC's Motion to Dismiss [269] in part as to claims against Duff for sales occurring before February 2014, specifically SAC ¶¶ 196(a), 197 (first sentence only), 198(a), 199(b), 200(a), and 201(a) and (b) and as to claims against Duff for sales of securities other than ACOF and ACF, specifically SAC ¶¶ 196(c), 198(d), 199(c), and 202(a) and (b); I allow Plaintiffs leave to re-plead their non-ACOF and non-ACF claims; and DENY the Motion on all other grounds;
(5) DENY TD Ameritrade, Inc.'s Motion to Dismiss [275].
I further adopt Judge Acosta's recommendation that no further motions to dismiss be allowed. Any further issues concerning the sufficiency of the claims presented in the SAC or in any Third Amended Complaint will be addressed on class certification (if appropriate) or summary judgment (if appropriate).
This matter is referred back to Judge Acosta for the issuance of an appropriate scheduling order, including a deadline for filing of a Third Amended Complaint.
IT IS SO ORDERED.
DATED this 21 day of September, 2018.
/s/_________
MICHAEL W. MOSMAN
Chief United States District Judge