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United States District Court, S.D. New York
April 16, 2014
VIVINE H. WANG, Plaintiff,v.THE BEAR STEARNS COMPANIES LLC, J.P. MORGAN SECURITIES LLC, J.P. MORGAN CLEARING CORP., DELOITTE & TOUCHE LLP, ALAN D. SCHWARTZ, ALAN C. GREENBERG, JOEY ZHOU, and GARRETT BLAND, Defendants
Decided: April 15, 2014.
Page 538
For the Plaintiff: Mohammed K. Ghods, Esq., William Stahr, Esq., Jeremy A. Rhyne, Esq., GHODS LAW FIRM, Santa Ana, CA.
For Joe Zhou and Garrett Bland, Defendants: Brad S. Karp, Esq., Eric S. Goldstein, Esq., Jessica S. Carey, Esq., Jonathan Hurwitz, Esq., PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, NY.
Page 539
Defendants Joe Y. Zhou (" Zhou" ) and Garrett Bland (" Bland" ) (collectively, the " Defendants" ) have moved pursuant to Federal Rules of Civil Procedure 9(b) and 12(b) (6) to dismiss the claims against them in the complaint filed on March 29, 2011 (the " Complaint" ) by plaintiff Vivine H. Wang (" Wang" or the " Plaintiff" ). Upon
Page 540
the conclusions set forth below, the motion is granted and the Complaint is dismissed as to Zhou and Wang with leave granted to replead within 20 days.
Prior Proceedings
Wang purchased 150,000 shares of The Bear Stearns Company Inc. (" Bear Stearns" ) between March 6, 2008 and March 14, 2008 through a Bear Stearns brokerage account upon the order of her husband, Roger Wang (" Roger Wang," collectively with Plaintiff the " Wangs" ). The purchase and its circumstances are the subject of the Complaint. The Wangs refused payment on the purchase.
After the Wangs refused to pay for purchases of Bear Sterns stock, Bear Stearns liquidated Wang's brokerage account and filed an arbitration claim to recover the money owed. ( See ¶ ¶ 38-39).[1] Wang refused to participate in the arbitration, and Bear Stearns was eventually awarded $3,048,514.87 on June 9, 2009. (¶ 40). The award was confirmed and a judgment was entered by a district court in California on January 13, 2010. Bear Stearns was also subsequently awarded attorneys' fees and costs.
While Bear Stearns's arbitration against Vivine Wang was proceeding, in April 2008, Roger Wang filed a complaint against Bear Stearns, Zhou, and Bland in California state court, alleging state law violations in connection with the March 2008 purchases of Bear Sterns stock in his wife's account. (No. BC388727 (Cal. Super. Ct., Los Angeles)). Roger Wang alleged that he, not his wife, authorized the purchases, although the account was solely in her name. Roger Wang's suit, which asserted a putative class claim, was removed to the United States District Court for the Central District of California (08 Civ. 5523 (C.D. Cal.), Doc. No. 42), and then transferred by the MDL Panel to this Court for coordinated or consolidated pretrial proceedings with the other related actions pending here.
Roger Wang's action was subsequently consolidated with related securities actions under the caption In re Bear Stearns Cos., Inc. Securities Litigation, No. 08 Civ. 2793 (the " Securities Action" ). (08 M.D.L. 1963 (S.D.N.Y.), Doc. No. 31 ¶ 21). In the Securities Action, court-appointed Lead Plaintiff filed a Consolidated Class Action Complaint on February 27, 2009, which asserted claims on behalf of " all persons and entities that, between December 14, 2006 and March 14, 2008 . . . purchased or otherwise acquired the publicly traded common stock [of Bear Stearns]." (CA ¶ 1).
On March 29, 2011, Wang filed the instant Complaint in the United States District Court for the Central District of California. On August 15, 2011, the MDL Panel transferred Wang's action to this Court for coordinated or consolidated pretrial proceedings with the Securities Action. On February 6, 2012, Wang's application to have her action coordinated, rather than consolidated, with the Securities Action was granted. ( See 11 Civ. 5643 (S.D.N.Y.), Doc. No. 53).
After motion practice and discovery in the Securities Action, the parties reached a settlement, which was approved by the Court in the orders and final judgments dated November 29, 2012. (08 M.D.L. 1963 (S.D.N.Y.), Doc. Nos. 337-338). On August 22, 2012, Vivine Wang opted-out of
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the class action settlement.[2]
Allegations of the Complaint
The Complaint makes the following allegations. Vivine Wang is an individual residing in California. (¶ 1). Zhou and Bland worked for Bear Stearns in its Century City, California office, (¶ ¶ 18, 19). Wang alleges that Zhou worked as a " broker-dealer, the agent of a broker-dealer, and/or an investment advisor" (¶ 18), and Bland as a broker-dealer and/or investment advisor with the title of " Senior Managing Director." (¶ 19).
Beginning in the mid-1990s, Zhou provided investment advice to the Wang family. (¶ 23). In early 2008, after some time working with a different broker, Wang and her husband contacted Zhou and asked to " place some stock orders with Bear Stearns." (¶ 24). Zhou told her that a new account would need to be opened, and then met with Wang to execute the necessary paperwork. (Id.).
On February 29, 2008, Wang entered into a Customer Agreement with Bear Stearns, which set forth the terms and conditions on which Bear Stearns " open[ed] and maintain[ed]" her account. (Chepiga Decl. ¶ 3, Ex. 2). The Customer Agreement stated:
(a) A Bear Stearns entity will execute transactions accepted by it and/or will provide such other clearance, settlement and custody services in connection with the maintenance of your Account(s) at Bear Stearns.
(b) Bear Stearns is acting as a broker-dealer and custodian, and not as (1) an investment adviser under the Investment Advisors Act of 1940, or (2) a " fiduciary" as defined in Section 3(21) of the Employee Retirement Income Security Act of 1974, as amended (" ERISA" ) or Section 4975 of the Internal Revenue Code of 1986, as amended (" Code" ), with respect to your Account(s) under this Agreement. . . . Neither Bear Stearns nor its employees are authorized to provide, and shall not provide, legal, tax or accounting advice or services and you will not solicit or rely upon any such advice from them whether in connection with transactions in any of your accounts or otherwise. You have consulted or will consult with your own technical, legal, regulatory, tax, business, investment, financial and accounting advisors to the extent you deem necessary in determining the investment and trading strategy appropriate for you and the appropriateness of each transaction.
( Id. at ¶ 1 (a), (b)).
Shortly after the new account was opened, Roger Wang began placing verbal orders through Zhou for purchases of stock in financial companies. (¶ ¶ 25-29). On March 6, 2008, he ordered 10,000 shares of Bear Stearns common stock (" BSC" ), (¶ 27). He placed additional orders for 20,000 BSC shares on March 10 and 11 respectively. (¶ ¶ 28-29).
On March 11, 2008, Roger Wang attended a meeting (for the Asia Society) that was hosted at the offices of Bear Stearns in Century City, California. (¶ 30). At this meeting Roger Wang was seated at a table with Bland. Bland is alleged to have told Roger Wang: " that Bear Stearns was financially sound, that its stock value should be at least $85.00 per share, and that now was a great time to invest in the stock." ( Id.). In addition, Bland allegedly told Roger Wang " to buy as much BSC stock as he could." ( Id.).
Page 542
Early in the week of March 10, rumors had begun to infiltrate the market about Bear Stearns's liquidity. (CA ¶ 263). On March 10, 2008, the Company's liquidity pool stood at $18.1 billion. (CA ¶ 492). At the end of the day on March 11, 2008, the Company's liquidity remained at $15.8 billion (adjusted for the release of customer protection funds) (CA ¶ 273, citing letter from SEC Chairman Cox to the Chairman of the Basel Committee on Banking Regulation dated March 20, 2008), well within the range of the preceding weeks.
Clients continued pulling their funds on March 12 and 13, drawing down the Company's liquidity pool. (CA ¶ ¶ 280-81). By the evening of Thursday, March 13, 2008, Bear Stearns's liquidity had declined to $2 billion. (CA ¶ 280). Because Bear Stearns could not open for business the next day without financing, it negotiated with JPMorgan for a $30 billion funding facility backstopped by the federal government. (CA ¶ 285). At 9:00 am on the morning of Friday, March 14, 2008, before the market opened, Bear Stearns issued a press release announcing the deterioration of its liquidity position, and the secured loan facility from JPMorgan. (¶ 33). Following this release, the price of Bear Stearns stock fell from $57 per share to $30 per share. (CA ¶ 11).
At some point after the market opened on March 14, Roger Wang, allegedly unaware of Bear Stearns's press release, contacted Zhou and placed a verbal order for 200,000 additional shares of BSC. (¶ ¶ 31-34). The order, however, was only " partially filled," and, as a result, Wang was to receive 100,000 shares of BSC at approximately $34 per share and " at no time that day or ever did . . . Zhou warn, caution, or advise Plaintiff or her husband against buying any more BSC stock." (¶ 31). In placing this order on March 14, Roger Wang is also alleged to have relied on Bland's " favorable recommendation" from three days earlier. (Id.).
Over the ensuing weekend, the loan facility did not calm the market's fears. On Sunday, March 16, 2008, Bear Stearns announced an agreement for JPMorgan to purchase the Company for the equivalent of $2 per share. (¶ 35). According to the Complaint, this announcement is when the Wangs " learned of the fraud." (¶ 35). The Wangs immediately stopped payment " on the scheduled wire transfer for their final stock trades," and refused to pay for their purchases of BSC stock. (¶ 35). The following day, March 17, a representative of Bear Stearns demanded payment from the Wangs, but was referred to their lawyer. (¶ 36).
Based on these allegations, the Plaintiff has brought claims against the Defendants for violation of Securities Exchange Act of 1934, Section 10(b), 15 U.S.C. § 78j (b) (¶ ¶ 49-58) breach of fiduciary duty; conspiracy to induce breach of fiduciary duty (¶ ¶ 64-69); fraud and deceit and conspiracy to defraud (¶ ¶ 70-79); violations of California Corporations Code Sections 25400 and 25401 (¶ ¶ 80-86); and violations of California Corporations Code Section 17200 (¶ ¶ 87-91).
The Relevant Standards
On a motion to dismiss pursuant to Rule 12(b)(6), all factual allegations in the complaint are accepted as true, and all inferences are drawn in favor of the pleader.
Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). " 'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims . . . .'"
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
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To survive a motion to dismiss pursuant to Rule 12(b) (6), " 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plaintiffs must allege sufficient facts to " nudge[ ] their claims across the line from conceivable to plausible."
Twombly, 550 U.S. at 570. Though the Court must accept the factual allegations of a complaint as true, it is " 'not bound to accept as true a legal conclusion couched as a factual allegation.'"
Iqbal, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555).
" To state a claim on which relief can be granted under § 10(b) and Rule 10b-5, a plaintiff must plead, inter alia, that . . . the defendant made a false representation as to a material fact, or omitted material information, and acted with scienter." S. Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 108 (2d Cir. 2009). A plaintiff must also satisfy the heightened pleading requirements set forth in Rule 9 (b) of the Federal Rules of Civil Procedure and the PSLRA. See Boca Raton Firefighters & Police Pension Fund v. Bahash, 506 F.App'x 32, 35-36 (2d Cir. 2012). Rule 9(b) requires that averments of fraud be " state[d] with particularity." Fed.R.Civ.P. 9(b);
see also ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir. 2007). To satisfy this requirement, a plaintiff must: " (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." Rombach v. Chang, 355 F.3d 164, 170 (2d Cir. 2004) (internal quotation marks and citation omitted). General, conclusory, or speculative allegations, unsupported by specific facts, are legally insufficient. Id. at 176.
The Allegations of Section 10(b) Violations Are Inadequate
Wang's Section 10(b) allegations inadequately allege fraud with particularity, scienter, and reliance on any misstatements or omissions.
The Complaint does not plead fraud with particularity. With respect to Zhou, Plaintiff does not allege any affirmative misstatements. Instead, she alleges that Zhou failed to " caution or advise Plaintiff or her husband against buying any more BSC stock" on March 14, 2008 " or ever." (¶ 31). However, " [s]ilence [i.e., an omission] absent a duty to disclose, is not misleading under Rule 10b-5." In re Initial Public Offering Sec. Litig., 241 F.Supp.2d 281, 380 (S.D.N.Y. 2003) (citing Basic Inc. v. Levinson, 485 U.S. 224, 241-42, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988)). The Complaint does not adequately allege that Zhou had any duty to advise Wang or caution her about purchases of BSC shares in view of the disclaimer in the Customer Agreement that Wang signed.
It is not alleged that Zhou had a duty to speak in order to correct any prior statements.
See, e.g., In re N. Telecom Ltd. Sec. Litig., 116 F.Supp.2d 446, 460-61 (S.D.N.Y. 2000) (" A duty to correct or update, by definition, only arises with respect to 'prior' public statements." ). Zhou did not have a duty to correct any misstatement allegedly made by anyone else at Bear Stearns, since there is no allegation that he was involved in any way in the making of those statements.
See Levitt v. J.P.Morgan Sec., Inc., 710 F.3d 454, 467-68 (2d Cir. 2013) (defendant did not have a duty to disclose where complaint failed to allege the defendant's " direct involvement" in the scheme); In re Union Carbide Corp. Consumer Prods. Bus. Sec. Litig.,
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666 F.Supp. 547, 563 (S.D.N.Y. 1987) (absent evidence of direct participation in the preparation or issuance of documents, officers had no duty to disclose or correct any misstatements or omission of material fact in documents issued by corporation).
Plaintiff concedes that the Complaint does not allege any affirmative misstatement by Zhou but has alleged that Zhou should have warned her not to purchase any additional BSC stock on Friday, March 14, 2008 in view of the 9 a.m. announcement that Bear Stearns's liquidity had significantly deteriorated and the firm was receiving extraordinary financing from JPMorgan. (¶ ¶ 31, 33). The Complaint also has alleged that the Bear Stearns press release on the morning of March 14 meant, " [i]n effect, Bear Stearns' credit facilities had essentially dried up, liquidity was in fact a huge problem, and the company was rapidly heading towards complete financial collapse." (¶ 33).
Even if the allegedly omitted, publicly available information about Bear Stearns's financial condition on March 14 was material, Zhou had no duty to disclose that information to the Wangs. The Customer Agreement signed by Plaintiff specifically disclaimed any such duty. Plaintiff has contended that the Customer Agreement only disclaimed fiduciary duties in the context of ERISA or retirement accounts, but the Customer Agreement is not so limited. It explicitly notes on the first page that " Bear Stearns is acting as a broker-dealer and custodian . . . Brokerage activities are regulated under different laws and rules than advisory activities and generally do not give rise to the fiduciary duties that an investment adviser has to its clients."
Wang has alleged that Zhou placed certain orders for BSC stock at her husband's request and that Zhou was incentivized to commit fraud in order to earn commissions on the trades. Wang does not allege that Zhou received any greater commissions from Wang's purchases of Bear Stearns stock than he did from Wang's other stock purchases at this time, and such generalized allegations do not give rise to a strong inference of scienter. See ECA, Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 553 F.3d 187, 200-01 (2d Cir. 2009).
In the absence of motive, the Plaintiff must provide " correspondingly greater" circumstantial allegations of scienter. Plaintiff has not alleged that Zhou was in possession of any material information about Bear Stearns's financial condition that was not publicly disclosed. Although Wang cites several " early warning signs such as that, on March 11, ING Group NV allegedly informed Bear Stearns that it was pulling $500 million in financing," (Opp. at 9; CA ¶ 269), there is no connection alleged between Zhou and those allegations nor an explanation for why a retail broker in the Bear Stearns's Los Angeles office would have had any knowledge of these events in real time. A corporation's knowledge cannot be attributed to every employee. See, e.g., In re Dynex Cap., Inc. Secs. Litig., No. 05 Civ. 1897, 2006 WL 314524, at *8-9 (S.D.N.Y. Feb. 10, 2006), rev'd in part on other grounds, 531 F.3d 190 (2d Cir. 2008).
Wang does not dispute that she and her husband are highly sophisticated investors who placed unsolicited orders with Zhou for increasing amounts of BSC stock in March 2008 as the rumors about Bear Stearns's financial condition intensified and its stock price dropped. Wang also does not dispute that she purchased BSC stock on March 14 following the public announcement of Bear Stearns's serious liquidity problems. Plaintiffs alleged reliance on Zhou is unreasonable as a matter of law.
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Further, any omission by Zhou would only be actionable as fraud under § 10(b) to the extent it was " material."
See In re Merrill Lynch Auction Rate Sec. Litig., 851 F.Supp.2d 512, 535-36 (S.D.N.Y. 2012). To establish materiality a plaintiff must demonstrate " a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information made available." Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 485 (2d Cir. 2011) (quotations omitted, emphasis added). Wang fails to allege that a representation from Zhou regarding the instability of Bear Stearns would have affected the decision to purchase stock. Moreover, Wang has acknowledged that the substance of Zhou's alleged omission on March 14 had already been disclosed to the market at the time of the purchases that day. (¶ ¶ 33-34). Any failure on Zhou's part to reference the release relating to the loan facility with JP Morgan in a later conversation with Roger Wang after the release cannot be material as a matter of law.
See In re Merrill Lynch, 851 F.Supp.2d at 535-36 (defendants prior disclosure of the substance of the alleged omission to the market rendered an omission immaterial).
To the extent that Wang's claims against Zhou are based on a failure to " ever" caution her or her husband about buying more BSC shares, not just on March 14, Wang has not alleged with any particularity why omissions on other occasions were materially misleading.
With respect to Bland, Plaintiff claims that Bland represented to Roger Wang during a conference on March 11 that Bear Stearns was a sound investment, that " its stock value should be at least $85.00 per share, . . . that [it] was a great time to invest in the stock," and that he would have purchased more shares at the time if he could. (¶ 30). However, Bland's alleged statements are opinion.
See Rombach v. Chang, 355 F.3d 164, 174 (2d Cir. 2004). Prior cases have found statements virtually identical to Bland's to be inactionable as fraud:
o " [Bank] is in very good shape as it moves into its next stage of development." City of Sterling Heights Police & Fire Ret. Sys. v. Abbey Nat'l, PLC, 423 F.Supp.2d 348, 358 (S.D.N.Y. 2006);
o " [Company has a] strong balance sheet." In re DRDGOLD Ltd. Sec. Litig., 472 F.Supp.2d 562, 568-69 (S.D.N.Y. 2007) (statement " more properly characterized as optimistic statements of opinion as opposed to fact" );
o " [Company is] in very good shape . . . problems reflect what every other reinsurer faced. We have put it behind us . . . ."
Malin v. XL Capital Ltd., 499 F.Supp.2d 117, 144 (D. Conn. 2007);
o Plaintiffs " were going to make good money on new issues." New v. L.F. Rothschild, Uterberg, Towbin, 651 F.Supp. 160, 163-64 (S.D.N.Y. 1986) (finding that statements were nothing more than " the common puff of a salesman" ); and
o " [Bank] set the standard for best practices in risk management techniques."
ECA, Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 205-06 (2d Cir. 2009) (" almost every investment bank makes these statements." ).
Such corporate optimism has been held to be
actionable only when the speaker provided " guarantees or . . . specific
statements of fact, . . . or if [he] does not genuinely or reasonably believe
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In re Int'l Bus. Machines Corp. Sec. Litig., 163 F.3d 102, 107 (2d Cir. 1998). Wang makes no allegation that Bland ever made any guarantees or specific statements of fact, and she provides no adequate allegation that Bland did not subjectively believe the statements when made.
The Plaintiff has also failed to adequately allege scienter. Under the PSLRA, " Congress required plaintiffs to plead with particularity facts giving rise to a strong--i.e., a powerful or cogent--inference" of fraudulent intent. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323, 127 S.Ct. 2499, 2510, 168 L.Ed.2d 179 (2007) (citations omitted); 15 U.S.C. § 78u-4(b)(2). A " strong inference" of scienter can be established by demonstrating facts either: " (1) showing that the defendants had both motive and opportunity to commit the [alleged] fraud or (2) constituting strong circumstantial evidence of conscious misbehavior or recklessness." ATSI Commc'ns, Inc. v. The Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir. 2007); see also ECA, 553 F.3d at 198. " [I]n determining whether the pleaded facts give rise to a 'strong' inference of scienter, [a] court must take into account plausible opposing inferences," such that " a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged."
Tellabs, 551 U.S. at 336, 127 S.Ct. at 2509-10.
The Complaint is devoid of factual allegations suggesting that Zhou and Bland had motive to commit fraud. There is an allegation that Zhou and Bland misstated or omitted material facts " in an effort to maintain the artificially-inflated price of BSC common stock." (¶ 51). The Second Circuit has held in numerous cases that " similar allegations of a generalized motive that could be imputed to any for-profit endeavor are not concrete enough to infer scienter." In re Merrill Lynch, 851 F.Supp.2d at 528; see ECA, 553 F.3d at 200-01 (no inference of scienter could be drawn from allegations that defendants had a " desire to maximize corporation's profits," or " were motivated because inflated stock price or improved corporate performance would increase their compensation" ); Acito v. IMCERA Grp. Inc., 47 F.3d 47, 54 (2d Cir. 1995).
In addition, Wang has failed to allege opportunity that either Zhou or Bland were actually in possession of, or had access to, material information about Bear Stearns's liquidity or the value of its stock price that had not already been publicly disclosed. Absent credible allegations that Zhou or Bland had access to nonpublic facts about Bear Stearns's unfolding financial condition, Wang's claim cannot satisfy the PSLRA and the particularity requirements of Rule 9(b).
See In re Dynex Capital, Inc. Secs. Litig., No. 05 Civ. 1897, 2006 WL 314524, at *8-9 (S.D.N.Y. Feb. 10, 2006) (dismissing claims where complaint failed to allege that corporate officers " saw or had access to specific reports or statements that indicated malfeasance, or that contradicted their public statements" ), rev'd in part, 531 F.3d 190 (2d Cir. 2008).
With respect to Bland, there is no circumstantial evidence from which to infer that Bland did not subjectively believe that March 11, 2008 was in fact a good time to invest in Bear Stearns. That Bland's prediction turned out to be wrong is not relevant. See Podany v. Robertson Stephens, Inc., 318 F.Supp.2d 146, 155 (S.D.N.Y. 2004) (" [L]iability premised on objective wrongness of an opinion alone would risk holding federal securities law defendants liable for good-faith, if negligent, errors." ).
Wang has not alleged any circumstantial evidence that would compensate for her failure to allege motive and opportunity.
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" When, as here, [plaintiff] ha[s] failed to plead motive and opportunity . . . the strength of the circumstantial allegations must be correspondingly greater." In re JP Morgan Chase Sec. Litig., 363 F.Supp.2d 595, 624 (S.D.N.Y. 2005) (citing Kalnit v. Eichler, 264 F.3d 131, 142 (2d Cir. 2001)). Strong circumstantial evidence of scienter would require specific allegations tending to support that Zhou and Bland either: (1) possessed knowledge or had access to information that renders their alleged statements and omissions misleading; or (2) " ignored obvious signs of fraud." Novak v. Kasaks, 216 F.3d 300, 308-09 (2d Cir.), cert. denied, 531 U.S. 1012, 121 S.Ct. 567, 148 L.Ed.2d 486 (2000). There is no allegation that Zhou or Bland had access to information; nor do Wang's allegations give rise to a strong inference of recklessness or misbehavior.
A plaintiff alleging fraud must also plead reasonable reliance on the misstatements or omissions. SEC v. DiBella, 587 F.3d 553, 563 (2d Cir. 2009). The reasonableness of reliance turns on several factors; no single one is " dispositive." Brown v. E.F. Hutton Grp., Inc., 991 F.2d 1020, 1032 (2d Cir. 1993). Factors include: " (1) The sophistication and expertise of the plaintiff in financial and securities matters; (2) the existence of longstanding business or personal relationships; (3) access to the relevant information; (4) the existence of a fiduciary relationship; (5) concealment of the fraud; (6) the opportunity to detect the fraud; (7) whether the plaintiff initiated the stock transaction or sought to expedite the transaction; and (8) the generality or specificity of the misrepresentations." In re Merrill Lynch, 851 F.Supp.2d at 536-37.
Roger Wang is the chairman and CEO of the Golden Eagle International Group, which owns and operates high-end retail department stores throughout China and is traded on the Hong Kong exchange. In its 2013 list of billionaires, Forbes magazine estimated Roger Wang's net worth to be $3.8 billion. (Chepiga Decl. ¶ 2, Ex. 1). The Wangs are financially sophisticated, given their business experience and wealth and satisfy the definition of " Accredited Investor" under the federal securities laws. See 17 C.F.R. § 230.501. The Customer Agreement provided that Bear Stearns and its employees were acting only as a broker-dealer and custodian with respect to Wang's account, not an investment advisor or fiduciary.
The specific misstatements or omissions alleged by Wang do not adequately allege reasonable reliance. With respect to Zhou, Wang concedes that Bear Stearns issued a press release at 9:00 a.m. on the morning of March 14, prior to any purchases that day in her account. (¶ ¶ 33, 34). This release disclosed to the market the liquidity deterioration at Bear Stearns. As a sophisticated investor, Wang cannot claim justifiable reliance on Zhou's failure to mention an already public press release.
See, e.g., Hunt v. Alliance N. Am. Gov't Income Trust, Inc., 159 F.3d 723, 730 (2d Cir. 1998) (finding that in light of adequate disclosures, " no reasonable investor could have been misled" );
see also Heliotrope Gen., Inc., 189 F.3d at 980-81 (no duty to disclose information " that the market was aware of" from news articles). This is true regardless of whether or not Wang was actually aware of the release. Starr ex rel. Estate of Sampson v. Georgeson S'holder, Inc., 412 F.3d 103, 109-10 (2d Cir. 2005) (quoting Brown, 991 F.2d at 1032) (" [A]n investor may not justifiably rely on a misrepresentation if, through minimal diligence, the investor should have discovered the truth." ).
With respect to Bland, his statements of opinion are too generic to have induced a
Page 548
reasonable investor to rely on them. In San Leandro Emergency Med. Grp. Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 811 (2d Cir. 1996), the Second Circuit held that " general announcements by Philip Morris that it was 'optimistic' about its earnings and 'expected' Marlboro to perform well . . . [could not] have misled a reasonable investor . . . ." . See also Lasker v. N.Y. State Elec. & Gas Corp., 85 F.3d 55, 59 (2d Cir. 1996) (company's statement that it would have " continued prosperity" was not a guarantee against stock price declines, and just " the type of 'puffery' that this and other circuits have consistently held to be inactionable" ).
Any reliance on Bland's alleged statements is not adequate because Wang only alleges reliance on Bland's statements in connection with purchases on March 14. (¶ 31 (" On Friday, March 14, . . . with reasonable reliance on Defendant Bland's favorable recommendation . . . Plaintiff's husband placed another verbal order . . . ." )). As an initial matter, these purchases took place three days after Bland is alleged to have spoken with Roger Wang and hours after Bear Stearns issued its press release on the morning of March 14 notifying the market of the serious liquidity problems it experienced as a result of a run on the bank and the financing being provided by JPMorgan. (¶ ¶ 33-34). In light of these intervening developments, which were widely reported in the press, it was not reasonable for a sophisticated investor like Wang to have relied on statements that Bland allegedly made back on Tuesday, March 11 on Friday, March 14.[3]
Moreover, Wang's allegation that Bland informed Roger Wang at a luncheon on March 11, 2008 that Bear Stearns was a sound investment, " its stock value should be at least $85.00 per share," it " was a great time to invest in the stock [of Bear Stearns]," and Bland would have purchased more shares at the time if he could constitutes a generic statement of corporate optimism actionable only if Bland provided " guarantees" or " specific statements of fact" or did not " genuinely or reasonably" believe the statements. See In re Int'l Bus. Machs. Corporate Sec. Litig., 163 F.3d 102, 107 (2d Cir. 1998). The " hallmark of an opinion is that it does not express 'matters of objective fact' which can be assessed against an 'objective standard' but instead conveys a belief or 'judgment' whose 'determination is inherently subjective.'" Billhofer v. Flamel Techs., S.A., No. 07 Civ. 9920 (RWS), 2012 WL 3079186, at *10 (S.D.N.Y. July 30, 2012) (quoting Fait v. Regions Fin. Corp., 655 F.3d 105, 110-13 (2d Cir. 2011)). Bland's alleged statements reflect his own subjective beliefs. While the Plaintiff has contended it would be inappropriate to find that these statements were opinions as opposed to factual statements, such findings are routinely made by courts on motions to dismiss.
See, e.g., Plumbers' Union Local No. 12 Pension Fund v. Swiss Reinsurance Co.., 753 F.Supp.2d 166, 182 (S.D.N.Y. 2010); In re DRDGOLD Ltd. Sec. Litig., 472 F.Supp.2d 562, 568-69 (S.D.N.Y. 2007).
Plaintiff's allegations do not give rise to a plausible inference that Bland did not subjectively believe his alleged March 11, 2008 statements to Roger Wang about Bear Stearns. The contention that Bland
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must have known that Bear Stearns was in a precarious financial position because two lenders allegedly pulled a small amount of financing from Bear Stearns prior to March 11 fails to connect Bland to the withdrawals of financing and does not allege any facts demonstrating that Bland knew or should have known of those events. The allegations of scienter fall well short of the Rule 9(b) and PSLRA heightened pleading standards.
The Allegations of State Law Violations are Time-Barred and Inadequately Pled
Count V of the Complaint asserts claims against Zhou and Bland for securities fraud under § § 25400 and 25401 of California Corporations Code.
Under California law, Wang had " two years after the discovery . . . of the facts constituting the violation" to assert her state law securities fraud claims. Wang alleges substantive violations of both § § 25400 and 25401, for which § § 25500 and 25501, respectively, provide causes of action. In turn, Section 25506 provides a two-year limitations period from the time of discovery for any causes of action arising under § § 25500 and 25501. See Cal. Corp. Code § 25506(b) (" [N]o action shall be maintained to enforce any liability created under Section 25500, 25501, or 25502 . . . unless brought before the expiration of five years after the act or transaction constituting the violation or the expiration of two years after the discovery by the plaintiff of the facts constituting the violation, whichever shall first expire." ). Wang discovered her claims on March 16, 2008, when the merger between Bear Stearns and JPMorgan was announced and when Wang stopped payments on the purchases of BSC because she had " learned of the fraud." (¶ 35). Wang's Complaint was not filed until March 29, 2011, more than three years later, and thus is time-barred.
Wang does not contest that she filed her Complaint against Zhou and Bland more than three years after her discovery of the alleged fraud, but contends that either American Pipe or California's equitable tolling principles apply to save her state law claims. Wang's claims were not tolled during the pendency of the Securities Action. " [A] federal court evaluating the timeliness of state law claims must look to the law of the relevant state to determine whether, and to what extent, the statute of limitations should be tolled by the filing of a putative class action in another jurisdiction."
Casey v. Merck & Co., 653 F.3d 95, 100 (2d Cir. 2011). " California has not adopted such American Pipe tolling where the class action was filed in a foreign jurisdiction."
See Hatfield v. Halifax PLC, 564 F.3d 1177, 1187 (9th Cir. 2009) (quoting Clemens v. Daimler Chrysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008)); Centaur Classical Convertible Arbitrage Fund Ltd. v. Countrywide Fin. Corp., 878 F.Supp.2d 1009, 1017 (C.D. Cal. 2011) (rejecting argument that prohibition against cross-jurisdictional tolling should not apply because the class action and subsequent action were both filed in the same federal court, because cross-jurisdictional tolling " includes all situations where a class action is filed outside the . . . state court system" ). is not the law in California.
Wang has acknowledged that in Clemens v. Daimler Chrysler Corp., 534 F.3d 1017 (9th Cir. 2008), the Ninth Circuit refused to extend American Pipe to allow an earlier class action brought in a foreign jurisdiction to toll the statute of limitations for a subsequently filed California action, but she contends that tolling principles should still apply here. Wang has contended that Zhou and Bland were on notice of her claims by the filing of the
Page 550
Securities Action in this District, and Defendants have not been prejudiced " in gathering evidence of identifying witnesses." (Opp. at 25). Zhou and Bland are not mentioned in the Securities Action complaint, the Securities Action complaint is not based on a broker-relationship with any plaintiff, and Zhou and Bland's alleged misrepresentations and omissions are separate from those at issue in the Securities Action. Wang has acknowledged these differences. (See Dkt. No. 68 at 5 (arguing her case presents " unique circumstances" due to her " direct client relationship with Bear Stearns" and the " false material information [she received] from Bear Stearns managers and employees (including defendants Zhou and Bland)" )). The Securities Action did not provide Zhou and Bland with notice of Wang's claims against them and allowing Wang's claims to proceed would prejudice Defendants.
Counts III and IV of the Complaint allege, respectively, state law breach of fiduciary duty and common law fraud claims against Zhou and Bland.
Under California law, claims for breach of fiduciary duty that sound in fraud and common law fraud must be brought within three years from the date the Plaintiff " discover[ed] the fraud or facts that would lead a reasonably prudent person to suspect fraud."
See Deveny v. Entropin, Inc., 139 Cal.App.4th 408, 42 Cal.Rptr.3d 807, 816 (Cal. Ct. App. 2006); Fuller v. First Franklin Fin. Corp., 216 Cal.App.4th 955, 163 Cal.Rptr.3d 44, 2013 WL 1820047, at *4 (Cal. Ct. App. 2013).
Since Wang's breach of fiduciary duty and common law fraud claims are based on the same allegations as her Section 10(b) claims, her allegations must comport with the particularity requirements of Rule 9(b).
See Sollberger v. Wachovia Secs., LLC, No. SACV 09-0766 AG (ANx), 2010 WL 2674456, at *7 (C.D. Cal. June 30, 2010); Soley v. Wasserman, No. 08 Civ. 9262, 2010 WL 931888, at *7 (S.D.N.Y. Mar. 12, 2010) (" Rule 9(b) also applies to breach of fiduciary duty claims where the breach is premised on the defendant's fraudulent conduct, such as an attempt to induce action or inaction on the part of . . . investors by means of falsehoods or material omissions." (internal quotations omitted)); Jackson v. Fischer, 931 F.Supp.2d 1049, 2013 WL 1089860, at *16 (N.D. Cal. 2013) (" [I]n federal court, allegations of [common law] fraud in civil cases are subject to the particularity requirements of Rule 9(b)." ). As set forth above, Wang has failed to plead fraud with the particularity required by Rule 9(b), and, accordingly, her claims for breach of fiduciary duty and common law fraud must be dismissed.
See Jackson, 931 F.Supp.2d 1049, 2013 WL 1089860, at *16; In re Merrill Lynch, 851 F.Supp.2d at 541.
Wang's Complaint also fails to allege that either Zhou or Bland had a fiduciary duty to warn her against additional purchases of BSC stock. Under California law, the scope of a duty that a broker owes his customers is entirely dependent on the nature of the parties' relationship, and does not include the duty to disclose, advise or warn about an investment unless the broker was acting in an advisory capacity. Brown v. Cal. Pension Admin. & Consultants, Inc., 45 Cal.App.4th 333, 348, 52 Cal.Rptr.2d 788 (Cal. Ct. App. 1996).
Courts have declined to find a duty to warn where, as here, a contract disclaimed such a relationship.
See Yerkovich v. MCA, Inc., 211 F.3d 1276 (9th Cir. 2000) (citing the existence of a contract expressly disclaiming the existence of a fiduciary relationship as evidence that no such relationship existed), cert. denied, 531 U.S. 871, 121 S.Ct. 171, 148 L.Ed.2d 117 (2000); Petersen v. Sec. Settlement, 226 Cal.App. 3d, 1445, 1454-55, 277 Cal.Rptr. 468 (Cal. Ct. App. 1991) (same). The Customer
Page 551
Agreement signed by Wang made plain that Bear Stearns would not be acting as an investment advisor or fiduciary. (See Chepiga Decl. ¶ 3; Ex. 2 ¶ 1(b) (disclaiming Bear Stearns's role as investment advisor and providing that Plaintiff would consult with her own " investment, financial and accounting advisors to the extent [she] deem[ed] necessary in determining the investment and trading strategy appropriate for [her]" )).
California courts consider " the relative sophistication and experience of the customer; the customer's ability to evaluate the broker's recommendations and exercise an independent judgment thereon; the nature of the account, whether discretionary or nondiscretionary; and the actual financial situation and needs of the customer." Duffy v. Cavalier, 215 Cal.App.3d 1517, 1536, n.10, 264 Cal.Rptr. 740 (Cal. Ct. App. 1989). Where a broker serves only to execute investment decisions made by a client, there is no " duty to notify the customer of the risky nature of an investment, or . . . of the poor performance of similar investments held by different customers." Brown, 45 Cal.App.4th at 348; see also Petersen, 226 Cal.App.3d at 1454-55 (broker that did not provide investment advice to its customers had no duty to warn her about the risky nature of investments). Wang and her husband were wealthy and sophisticated investors with the background and financial means necessary to exercise independent judgment. Indeed, they appeared to have a strategy of investing in the stock of financial companies in the height of the financial panic, as Bear Stearns was not the only financial stock they were acquiring at the time. (¶ ¶ 25-29).
With respect to Zhou specifically, Wang has alleged that, in the mid-1990s, Zhou " began advising [her] and her family about investments," (¶ 23); that he provided advice about " one or more purchases at issue in this case," (¶ 21); but did not " warn, caution, or advise . . . against buying more BSC stock," (¶ 31). Plaintiff does not allege that her BSC purchases were solicited by Zhou, does not describe any advice provided by Zhou, and does not state that she was persuaded by Zhou's advice. To the contrary, at most her allegations demonstrate that, after some time " using a different broker," (¶ 24), the Wangs contacted Zhou to set-up a brokerage account at Bear Stearns, and that, through him, Roger Wang placed orders for purchases of stock in several financial institutions. These allegations are insufficient to show that Zhou had a duty to advise Wang about the riskiness of her investments.
With respect to Bland, " Before a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law." Apollo Cap. Fund v. Roth Cap. Partners, 158 Cal.App.4th 226, 246, 70 Cal.Rptr.3d 199 (Cal. Ct. App. 2007). The Complaint lacks allegations that Bland intended to act on the Wangs' behalf or exercised control over Plaintiff's account. While the Complaint alleges that Bland knew that Roger Wang was a customer of Bear Stearns, that is insufficient to establish a fiduciary relationship between the Plaintiff and Bland simply because Bland was an employee of Bear Stearns.
See Daniels v. Bd. of Ret. of L.A. Cnty Emps. Ret. Ass'n, No. B228240, 2011 WL 6004477, at *6 (Cal. Ct. App. Dec. 1, 2011) (" As employees, the individual defendants were not in a fiduciary relationship with plaintiff and they owed him no fiduciary duty as a matter of law." ) (citations omitted); Masters v. San Bernardino Cnty Emps. Ret. Ass'n, 32 Cal.App.4th 30,
Page 552
37 Cal.Rptr.2d 860, 870 (Cal. Ct. App. 1995) (employee of retirement association owed no fiduciary duty to claimant).
The Plaintiff's claims for conspiracy to defraud and conspiracy to induce breach of a fiduciary duty are also time-barred as " allegation[s] of a conspiracy of a civil action [do] not affect the limitations period for the substantive theory of liability involved." Fuller, 216 Cal.App.4th 955, 163 Cal.Rptr.3d 44, 2013 WL 1820047, at *4. Also, since Wang's substantive claims against Zhou and Bland relating to common law fraud and breach of fiduciary duty must be dismissed for failure to adequately allege fraud, or pled with particularity, so too should her conspiracy claims be dismissed for the same reasons. See Ajetunmobi v. Clarion Mortg. Capital, Inc., No. SACV 12-0568, 2012 WL 2945051, at *5 (C.D. Cal. July 17, 2012) (dismissing claims for fraud and conspiracy to defraud where allegations failed to comport with particularity requirements of Rule 9(b)).
In addition, Plaintiff has not adequately pled that Zhou and Bland were participants in a conspiracy, or with whom they conspired. See Arei II Cases, 216 Cal.App.4th 1004, 157 Cal.Rptr.3d 368, 2013 WL 2356108, at *11 (Cal. Ct. App. 2013) (plaintiff must allege facts sufficient for the court to infer that each alleged conspirator " acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, . . . . It is not enough that the [alleged conspirators] knew of an intended wrongful act, they must agree--expressly or tacitly--to achieve it." ). Bare, conclusory allegations of participation in a conspiracy are insufficient. Id.
Even if those claims were not time-barred and were pled with the requisite particularity, which is not the case, Wang has failed to allege any facts supporting a conspiracy. Indeed, the only paragraph of the Complaint to which she points contains entirely conclusory allegation that Defendants " engaged in an unlawful conspiracy to support BSC's falling stock price through the use of deceitful means." (¶ 45). Such allegations are insufficient to plead a conspiracy as a matter of law. See Arei II Cases, 216 Cal.App.4th 1004, 157 Cal.Rptr.3d 368, 383 (Cal. Ct. App. 2013);
Guerin v. 21st Century Ins. Co., No. G029885, 2003 WL 329567, at *2 (Cal. Ct. App. Feb. 13, 2003).
Count VI asserts claims under California Business & Professions Code § 17200 for unlawful business practices. To state a claim under § 17200, a plaintiff must plead, inter alia, a predicate violation of an underlying law. Ingels v. Westwood One Broad., Servs., Inc., 129 Cal.App.4th 1050, 28 Cal.Rptr.3d 933, 938 (Cal. Ct. App. 2005) (a defendant " cannot be liable under § 17200 for committing unlawful business practices without having violated another law" ). Because Wang has not sufficiently plead a viable primary violation by Zhou or Bland, her § 17200 claims must be dismissed. Briosos v. Wells Fargo Bank, 737 F.Supp.2d 1018, 1033 (N.D. Cal. 2010).
Based upon the conclusion set forth above, the motion of the Defendants is granted, and the Complaint is dismissed with leave granted to replead within 20 days.
It is so ordered.
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April 6, 2011
LUCILLE SCOTT, PLAINTIFF,v.DEMARCO REI, INC., GATEWAY FUNDING, LLC, DIVERSIFIED MORTGAGE SERVICES, L.P.,GARDEN STATE LAND TITLE, LLC, POWERS KIRN, LLC,WILLIAM POWERS, CHASE FINANCE LLC, AND: JOHN DOES 1-5, DEFENDANTS.
Hon. Dennis M. Cavanaugh
This matter comes before the Court upon the separate motions of Chase Home Finance LLC ("Chase"), Gateway Funding Diversified Mortgage Services, L.P. ("Gateway"),*fn1 and William Powers ("Powers") to dismiss all claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. No oral argument was heard pursuant to Rule 78. For the reasons stated below, the motions of Chase and Gateway regarding the federal claims against them are granted and the case is remanded to the Superior Court, Chancery Division, Essex County.
I. BACKGROUND*fn2
Plaintiff Lucille Scott ("Plaintiff") is the victim of a foreclosure rescue scam -- a scheme commonly known as a sale-leaseback arrangement, in which she was tricked into deeding her house to a straw purchaser and then entering into a lease with an option to repurchase based on a promise that this was how she could save her home from foreclosure.
Plaintiff and her late husband William purchased their family home in Irvington, New Jersey in 1997 for $90,000. Compl. ¶ 14. In 2007, while suffering from financial difficulties, Plaintiff responded to a mailed advertisement she received from Defendant DeMarco REI, Inc. ("DeMarco"), a company purporting to help homeowners save their homes from foreclosure. Compl. ¶¶ 24, 25. She was subsequently contacted by Elaine Del Campo, a representative of the company. Compl. ¶ 26. Plaintiff completed what she believed was a mortgage application sent to her by DeMarco and returned the application to the company along with supporting documents. Compl. ¶ 29. She was informed a few days later that "Demarco could help her save her home." Compl. ¶ 31.
On September 28, 2007, Plaintiff was picked up by Del Campo and Kristin Miller, an employee or agent of Defendants Garden State Land Title, LLC ("Garden State") and Powers Kirn, LLC ("Powers Kirn") and taken to the offices of Powers Kirn for a "closing." Compl. ¶¶ 34, 39. Upon arrival, Plaintiff was introduced to Tim Muir, and told that he was to be the "property manager." Compl. ¶ 42. Plaintiff was also advised that she would be making all payments through Muir and that she should call him if she had any problems. Id. Plaintiff was then instructed to sign a stack of documents. Compl. ¶ 43. Upon doing so, she noticed the name "Samuel Agresta" on some of the papers. Compl. ¶ 44. She inquired as to who Mr. Agresta was and whether he was present and was informed that his presence was not necessary and that he "was just someone to put his name on her mortgage and that after a period of time Mrs. Scott would have everything back in her name and that she should not be worried or concerned about those details." Compl. ¶¶ 46-47.
Though Plaintiff believed that the purpose of the closing was to grant her a new mortgage, she actually executed a contract for the sale of her home to Agresta for $186,000.00. Compl., Ex. A. Additionally, Plaintiff signed a one-year lease between herself and DeMarco, in which she agreed to pay DeMarco $1,650 per month in order to remain in her home. Compl., Ex. B. The lease provided Plaintiff with an option to repurchase her home at any time for the purchase price of $167,400 and consideration of $8,981.25. Id.
After the closing, Plaintiff made biweekly payments of $825.00 to DeMarco from October 2007 until September 2009, totaling almost $39,000. Compl. ¶ 59. Plaintiff received a renewal lease on September 28, 2009. Compl. ¶ 61. The lease directed payments to Optima Property Management Group, LLC, not DeMarco or Agresta. Compl. ¶ 62. Around that same time, Plaintiff observed a man taking pictures of her house. Compl. ¶ 63. The photographer informed her that he had been sent by the bank and that the bank would be commencing a foreclosure action against the property. Compl. ¶ 64. Fearing that something was amiss, Plaintiff stopped making payments to DeMarco and placed the money in escrow instead. Compl. ¶ 65. She also contacted her pastor for assistance, and together they contacted Agresta. Compl. ¶ 66, 67. Agresta informed Plaintiff that "he did not own any property in Irvington and suggested that they talk to his son, Stephen." Compl. ¶ 68. Agresta passed away shortly thereafter. Compl. ¶ 69.
Following Agresta's death, his sons Stephen and Rocco instituted a landlord tenant action to evict Plaintiff from the property after she refused to pay rent or participate in efforts to persuade Chase to accept a short sale. Compl. ¶ 73. Plaintiff responded through counsel and disputed the Agrestas' right to possession of the property to rent. Compl. ¶ 74. After the Agrestas' attorney reviewed the loan file that Plaintiff had obtained from counsel for Powers, the Agrestas voluntarily agreed in open court to dismiss the action and deed the property back to Plaintiff. Compl. ¶ 77. In March 2009, Chase filed a foreclosure complaint seeking possession and sale of the property.
Plaintiff filed the present action on May 12, 2010, in the Superior Court, Chancery Division, Essex County. Chase subsequently removed the action to this Court on the basis of federal question jurisdiction.
In deciding a motion under Rule 12(b)(6), the district court is "required to accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in the light most favorable to the [Plaintiff]." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff's "obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[A court is] not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, assuming that the factual allegations in the complaint are true, those "[f]actual allegations must be enough to raise a right to relief above a speculative level." Bell Atl. Corp. 550 U.S. at 555.
A. Federal Claims
The Complaint alleges claims under the Truth in Lending Act ("TILA") and the Home Ownership and Equity Protection Act ("HOEPA") against Chase, Gateway, and DeMarco. Compl. ¶¶ 97-119.*fn3 Chase and Gateway argue that both of these counts must be dismissed because Plaintiff lacks standing to assert these claims. Plaintiff counters that she has standing because she entered into an equitable mortgage with Gateway and therefore "it is clear that Gateway was required to provide accurate material disclosures to Mrs. Scott and that Chase is also liable as assignee." Pl.'s Opp'n Br. 26. The Court finds that there was no equitable mortgage between Plaintiff and Gateway and thus, the TILA and HOEPA claims must be dismissed.
For Plaintiff to have rights under TILA and HOEPA, she must be a "consumer of credit." Johnson v. Novastar Mortg., Inc., 698 F. Supp. 2d 463, 468 (D.N.J. 2010) (citation and internal quotation marks omitted). "Thus, courts within this circuit have held that in order to show an injury under [TILA] and HOEPA, Plaintiff must have been doing business with Defendant." Id. (citation and internal quotation marks omitted). For this requirement to be satisfied, the Court must view the sale-leaseback transaction in question in light of New Jersey's equitable mortgage doctrine. Id.
"To create an equitable mortgage, all circumstances must indicate that both parties intended the transaction to be a loan advanced on security of realty." O'Brien v. Cleveland, 423 B.R. 477, 490 (Bankr. D.N.J. 2010) (citation and internal quotation marks omitted). The factors the Court must consider in order to determine the parties' intent are:
(1) the transaction and documents and whether they used terms such as debt, security, or mortgage; (2) the value of the property versus the loan amount; (3) the nature of the solicitation that gave rise to the transaction in question; (4) whether the owner attempted to sell the property on the open market; (5) whether the sale price was negotiated by the parties; and (6) whether the foreclosee continued occupancy of the home after the transaction.
Id. Upon reviewing these factors, it is plain that while an equitable mortgage may have existed between Plaintiff and Agresta and/or Plaintiff and DeMarco, it certainly did not exist between Plaintiff and Gateway.*fn4 See There is no allegation in the Complaint, or any documentation, that Plaintiff and Gateway engaged in any legal transaction. Agresta, the "purchaser" of Plaintiff's home took out a mortgage with Gateway for $167,400.00 on September 28, 2007 in order to purchase the property. Agresta signed the mortgage and the note and also signed a TILA disclosure statement. When the mortgage was assigned to Chase, Notice of Assignment of Mortgage was sent to Agresta. At no time were Plaintiff or DeMarco listed as borrowers on any of these loan documents. Plaintiff never made any mortgage payments to Gateway. Instead, all of her checks were sent directly to DeMarco, as required under the lease document.
The Complaint states that "Defendant Gateway had actual or constructive notice that the September 28, 2007 transaction was not a true sale but rather disguised security interest and that DeMarco through its agent, Agresta, was not the owner of the property but at best the holder of an equitable mortgage," Compl. ¶ 79. This conclusory statement is not supported by any facts and therefore does not sway the Court. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (noting that "pleadings that . . . are no more than conclusions, are not entitled to assumptions of truth.") The only reference in any of the mortgage documents to the existence of DeMarco in this transaction was a line in the HUD-1 statement indicating that a portion of the mortgage proceeds due to the seller was to be paid directly to DeMarco. The Court does not believe that there was any reason, however, for that to put Gateway on notice that there was a deficiency in the transaction between Plaintiff and Agresta given that the payment to DeMarco was listed below payoffs to other banks.
Based on the lack of any allegations or evidence establishing that Plaintiff was engaged in a consumer credit transaction with Gateway, the Court finds that the TILA or HOEPA claims against Gateway must be dismissed. See, e.g., Talley v. Deutsche Bank Trust Co., No. 07-4984 (RBK), 2008 U.S. Dist. LEXIS 83148, at *5 (D.N.J. Oct. 15, 2008) (dismissing TILA claim because "[i]n order for Defendant to be obligated to disclose credit terms to Plaintiff, Plaintiff must have been doing business with Defendant, and she was not.").
The Court further finds that because TILA and HOEPA claims may not be brought against Gateway, they also may not be brought against Chase as an asignee. See 15 U.S.C. 1461(a) ("Except as otherwise specifically provided in this title . . .any civil action for a violation of this title . . . or proceeding under section . . . which may be brought against a creditor may be maintained against any assignee of such creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment was involuntary.") (emphasis added).
B. State Claims
As the Court has dismissed the federal claims that were the basis for removal to this Court, it finds that it lacks subject matter jurisdiction over this matter, and all remaining claims will be remanded pursuant to 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").
For the reasons stated, the motions of Chase and Gateway to dismiss the TILA and HOEPA claims against them are granted and this matter is remanded to the Superior Court, Chancery Division, Essex County.
Dennis M. Cavanaugh, U.S.D.J.
Orig.: Clerk cc: All Counsel of Record Hon. Joseph A. Dickson, U.S.M.J. File
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The silly goose that is me has been virtually make-up free ALL week and so I won't be showcasing any new make-up look. And it's been wonderful. To continue my birthday celebration I decided to take an entire week off from work. And to say I've had the best week ever would actually be an understatement. I have never had… Read More
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Happy Friday, beauties! Only one more week until us Americans will be stuffing our faces silly on Thanksgiving Day. Let's hope that my family is understanding about my dairy-free, green and organic dietary needs. And even if they aren't, I'm going to have my vegan sweet potato pie on deck. Yea boi! But in the meantime, reader Tanchira left a… Read More
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Today my little sister Imani turns 12! This is hard for me to swallow because I remember when she was born. And now she's…12? Like…how? Anywhoovers, since I can't be there, I wanted to surprise her with her an e-card on Clumps. Leave a comment telling Imani Happy Birthday. I'm sure it would make her day. Love you, Pie! Back… Read More
FOTD Friday: Winged shadow is so hot right now
Hey giiirl! Lemme tell y'all something about South Beach…it's not really a big deal to us Floridians. Even though I was born in Miami, I didn't go to South Beach for the first time until last year. Crazy, uh? But now that I'm out here for the Blogalicious Conference and having a ball with my girls, it ain't so bad…. Read More
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John Odom
John Odom, 44, is seeking election as county commissioner after being appointed to the job to succeed Kevin McCasky in March 2011. Odom, 43, is a Golden resident and part-owner of Blue Sky Medical of Wheat Ridge, a medical-supply distribution company. He says he will work full-time for the county if elected and that being a county commissioner is a full-time job. Like his opponent, he lives in Applewood.
A Republican, Odom ran for election in state Senate District 20 in 2010 and lost to Cheri Jahn by about 4 percentage points. He is running on his commitment to keeping Jeffco's "fiscal house in order," and as a businessman who has spent his life "creating jobs in the private sector." He believes in small government and an economic comeback led by the private sector, he told the Courier.
Current residence: Applewood
Years of residence in Jefferson County: Entire life (44 years)
High school:Jefferson High School
College: Metro State University and CU (BA in Chinese)
Graduate degrees: MBA from Thunderbird School of Global Management
Current job: Jefferson County commissioner
Past work experience: Businessman, entrepreneur
Married: Yes
Children: 8-year-old son
Did children attend Jeffco schools? Yes
Favorite coffee, tea or sport drink: Coffee
Who is your political role model? Ronald Reagan
Political party affiliation: Describe your previous experience in elected office, political party leadership positions, campaign activities.
I am a lifelong Republican. I ran for state Senate District 20 in 2010. In March 2011, I was appointed Jefferson County commissioner.
Time commitment:If elected, how much time do you expect to devote to county responsibilities and how much to other work responsibilities?
I have found that being a Jefferson County commissioner is much more than a full-time job. It is an all-consuming position that requires many sacrifices. I have no other work responsibilities.
What one element of county government do you feel needs to be improved, why, and what will you do about it?
The most important responsibility of county commissioners is to keep the county's fiscal house in order. This board is accomplishing this task.
Name something that distinguishes you from your opponent and makes you a better choice for the job.
My opponent is a career, government bureaucrat. I have spent my life creating jobs in the private sector.
Describe your political philosophy.
I am a small-government, fiscal conservative. I believe that the private sector will lead in our country's economic comeback, not the government.
Business climate:What needs to be done to improve the business climate and increase job creation in Jefferson County?
The government needs to get out of the way of job creators. The government needs to lower tax rates on job creators. The government needs to lessen the uncertainty about future laws and regulations so that job creators can make good decisions about future investments.
Apartment buildings. Should there be stricter limits on high-density multifamily apartment buildings on vacant land near existing residential neighborhoods (i.e., Ken Caryl Towne Center development which allowed 380 living units on 14 acres)?
Currently, these rules are very strict. Essentially, you cannot build apartments in unincorporated Jeffco without going to the Board of County Commissioners and paying fees that make the vast majority of these projects unviable.
Impact fees. Do you favor reducing park fees or traffic impact fees in favor of making development more affordable for developers? It has been proposed that fees should be reduced (Quincy Lake development case).
This question is based on a false premise. No one at the county has proposed that these fees be reduced. One developer asked for a waiver, and it was denied.
Church expansion. Should the church on Lookout Mountain have been allowed to grow from 9,000 to 30,000 square feet on 10 acres surrounded by residential lots (Activation Ministries Inc.)?
As county commissioner, I have voted in many different zoning cases, including the church expansion on Lookout Mountain. I stand behind all my votes 100 percent.
Audit committee. Do you favor re-establishing an audit committee composed of volunteers as structured by the charter proposed by the current BCC, and if so why is it needed, and if not, why not? What should be the role of the audit committee?
Casey Tighe's audit committee was ineffective and wasteful. It was an ad hoc committee that was never official. It was inherently political and never had one significant finding. Tighe's audit committee cost Jeffco taxpayers over $150,000 annually with no significant results.
Libraries: Are you in favor of increasing the mill levy for public libraries in the upcoming budget year, or should the library make more cutbacks, close libraries or shorten hours?
This question is based on a false premise. We can keep the Jeffco libraries open and operational without increasing taxes. In this economic downturn, many government agencies, including libraries, have had to tighten their belts, as have most families in Jefferson County.
Jefferson Parkway: Are you in favor of building the parkway from Golden to the Northwest Parkway? Do you believe the BEEP legislation is a good way to get the parkway project built?
I am absolutely in favor of the Jefferson Parkway and completion of the beltway. The BEEP bill had some good and bad parts. I would only support a BEEP-type bill if the "eminent domain" language was removed. Of course, there would be no county commissioners voting on such a bill …
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Welcome Message from the Presidents
northeast regional nurse practitioners conference
We are delighted to welcome our keynote speaker Stephanie Ahmed to this year's conference. Dr. Ahmed is currently the Director of Ambulatory Nursing at Brigham and Women's and President of the Massachusetts Coalition of Nurse Practitioners. Her presentation will address the Connected Health: Human Caring as a Framework for Resilience and Restored Joy in Practice.
As always, the conference will provide a variety of workshops, clinical sessions and poster presentations led by a diverse faculty who are experts in clinical care and professional issues. The Massachusetts Coalition of Nurse Practitioners and the New Hampshire Nurse Practitioner Association will be holding their respective annual business meetings during lunch on Thursday. This is a great opportunity to hear about the work your organization is doing on behalf of the NP profession. If you do not belong to either organization, we welcome you to join us and learn about the benefits of becoming a member.
As part of the conference, we will once again host an evening reception on Thursday, May 4th at 5:45 PM. We welcome attendees to join us. The event will include recognition of nurse practitioners from Massachusetts and New Hampshire who have demonstrated excellence in professional practice. It will also provide an opportunity for networking and socializing.
By attending the conference, you will become a part of the regional nurse practitioner history and help create a vision for nurse practitioners of the future.
We look forward to seeing you at the conference!
Evie Stacy, MS, APRN
President, New Hampshire Nurse Practitioner Association
Barbara G. Rosato, DNP, ANP-BC, CDE
Past President, Massachusetts Coalition of Nurse Practitioners


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David F. Tepool
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Real World article
(written from a Production point of view)
(written from a Production point of view)
David F. Tepool (20 October 1954 – 28 May 2009; age 54) was a game designer that was one of the co-designers of the FASA Star Trek: The Role Playing Game system in the 1980s, along with Guy W. McLimore, Jr. and Greg K. Poehlein. He was also the creator of the Star Trek: Starship Tactical Combat Simulator.
He retired from game design at the same time that McLimore and Poehlein created the MicroTactix company, but in the mid-2000s, ran Olde Rivertowne Miniatures, a mail-order firm in Indiana.
During the 1980s, he worked primarily for FASA, but also did some work for TSR, including a collaboration with McLimore and Poehlein on a portion of the Castle Greyhawk set.


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£595,000 Offers Over
5 Bedrooms Detached House for sale
Lon St. Ffraid, Trearddur Bay, Holyhead, Anglesey, LL65
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Free Instant Valuation
Find out if you are charging enough rent or what your property would be worth if you were to sell now


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Call 800 499-4810Se habla Español
Call 800 499-4810Se habla Español
Choose your location and preferred currency for a localized shopping experience.
USPLabs Asteroid 2.0 Stack combines 4 powerful USPLabs products to help enhance your performance and get you that much closer to achieving your fitness and training goals. This stack has everything you need to increase strength, increase lean muscle growth, enhance testosterone levels and transform your physique.
Test Powder
As a dietary supplement, mix two level scoops (10 grams) with 8-10 ounces (240-300mL) of water and drink once per day, 6 days per week.
Compund 20
As a dietary supplement take 2 capsules with breakfast and 2 capsules 6-8 hours later with a snack.
USPLabs Powerfull
As a dietary supplement take 1-3 capsules before bed on an empty stomach.
Test Powder is a testosterone boosting supplement designed to increase your natural free testosterone levels which is necessary for building muscle. Raising natural test levels help increase protein synthesis and allows the body to build more lean muscle and reduce fat deposits. This supplement contains ideal ingredients to get your test levels to where they need to be to help you attain your training goals.
Test Powder Directions
As a dietary supplement, mix two level scoops (10 grams) with 8-10 ounces (240-300mL) of water and drink once per day, 6 days per week. On training days, consume within 60 minutes of beginning activity. For best results, use in conjunction with proper nutrition & training program.
Test Powder Side Effects & Warnings
This product is only intended to be consumed by healthy adults 18 years of age or older. Before using this product consult with your physician if you are using any prescription or over the counter medication or if you have any pre-existing medical condition including but not limited to: high or low blood pressure, cardiac arrhythmia, stroke, heart, liver, kidney or thyroid disease, seizure disorder, psychiatric disease, diabetes, difficulty urinating due to prostate enlargement or if you are taking a MAOI (Monoamine Oxidase Inhibitor) or any other medication. Do not use if you are, or may become, pregnant. Discontinue use 2 weeks prior to surgery. Do not combine with alcohol. Discontinue use and consult your health care professional if you experience any adverse reaction to this product. Do not exceed recommended serving. Do not use if safety seal is broken or missing. Do not use for more than 6 out of 7 days. KEEP OUT OF REACH OF CHILDREN.
Test Powder Ingredients / Label
240 Grams Fruit Punch
Serving Size:2Scoops(10g)
Servings Per Container:24
Amount Per Serving % Daily Value
Modulate Proprietary Blend 4005mg *
Trimethylglycine, L-Carnitine Tartrate,
Aframomum Melegueta (Seed) Extract,
Garcinia Mangostana (Standardized
For Gamma-Mangostin) (Fruit Peel) Extract
D-Aspartic Acid 3120mg *
Agmatine Sulfate 1000mg *
Mucuna Pruriens (Seed) Extract 200mg *
* Daily Value not established
Other Ingredients:
Citric Acid, Natural & Artificial Flavors, Silicon Dioxide, Acesulfame-K, Sucralose
About 20 years ago, the Beta-2 andrenoceptor became legendary virtually overnight when bodybuilders began to notice the incredible effects certain asthma drugs had on developing lean muscle and burning bodyfat...
In short, this receptor, when activated, can increase cAMP, which activates Akt signaling, which results in decreased muscle catabolism by decreasing expression of various muscle specific ubiquitin protein ligases (e.g., atrogin-1/MAFbx), which are thought to be responsible for muscle protein degradation...
Furthermore, working through cAMP and non-cAMP mediated mechanisms, ultimately results in increased activation of mammalian target of rapamycin (mTOR) signaling...
In a nutshell, it can potentially prevent muscle from breaking down, while also increasing muscle size...
If this weren't enough, by also increasing cAMP in fat tissue, Hormone Sensitive Lipase (HSL) is activated, which stimulates lipolysis and can potentially lead to a reduction of fat mass!
You see, your body not only has Beta-2 receptors, it also has additional closely-related receptors that most compounds in this class have "spillover" towards - meaning they activate the Beta-2 receptor, but also activate others...
...More is better right? Not in this case...
Related receptors are located on places other than muscle & fat - so that's why some potent Beta-2 agonists come with nasty side effects like extreme jitters, cramping and an overall "feel like crap" day in and day out...
...It's not the Beta-2 activation that causes these issues - it's the spillover...
Super-Selective Beta-2 Activity
Independent third-party research has uncovered compounds that are found in food that are so selective, scientific data shows it almost exclusively activates Beta-2 in vitro...
Get ready for an entire new category, one that can be used by itself or within your stack (unless your goal is to get fat and weak!)...Category Awesome
PowerFULL is different as you may feel it working.
A few years back a compound hit the bodybuilding scene with a lot of promise. It had great scientific research to back it up. That compound´s name was L-Dopa. As you may know, L-Dopa could never duplicate its scientific performance in the real world.
As if that wasn´t enough, we´ve added another unique compound to the PowerFULL formula. (They don´t call USP Labs "The Herbal Extract Experts" for nothing).
PurSap is the second weapon in the PowerFULL arsenal. PurSap is pretty cool (and unique) because it´s a Hormonal Adaptagen. You may not have heard much about Hormonal Adaptagens just yet. But I promise you this will be a buzz term you will hear for years to come. Just remember where you heard it first.
Your body responds to stress with hormonal release. Whether it´s stress from work, the gym, your girlfriend or even food your body always reacts with hormones. This can be good or bad, depending on which hormones are released and in what quantity.
In short, Hormonal Adaptagens like the specific alkaloids found in PowerFULL, will make your body more efficient in response to stress.* You will release more testosterone, less estrogen and basically "supercharge" your hormonal output!*
PurSap´s action is primarily supportive and restorative. It appears to assist the hormone control systems of the body, making them more efficient.* Since these hormones are "conductors" of the entire orchestra of physiological process their effect will cascade throughout the body.*
Stigmasterol, the chief ingredient of PureSap, is structurally similar to that of testosterone, which may help support the blood level of this hormone.*
Since PowerFULL has so many positive benefits, it´s impossible to place into one category.It´s more than a testosterone Booster. It´s more than a sleep aid.*
No questions asked yet


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Idiots Light Firework From The Wrong End
August 1, 2014 8:40am PST
If, for some reason, you ever wondered what it was like to light a firework from the wrong end, a couple of morons decided to do just that with the camera ready. After setting off quite the explosion, the two idiots are heard screaming as their stupidity finally catches up with them.
(See also: Moped Tough Guy Beats Woman On Streets, Gets Butt Kicked By Crowd)
Feel free to take a peek at the video and let us know what you think of these two numbskulls in the comments below.
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Drug Ads Do More Good Than Harm, FDA Told
Widespread direct-to-consumer advertising for prescription drugs is having a generally positive effect on the medication-taking public and is not causing significant problems for doctors, a number of researchers testified yesterday before the Food and Drug Administration.
While many physicians report feeling somewhat pressured by their patients to prescribe heavily advertised drugs, few consider it a significant problem. And while many consumers believe the advertisements emphasize benefits more than risks, they also report that the ads often spur them to talk to their doctors for the first time about medical problems.
"Very few people reported that they are going in to their doctor because of an ad for a prescription drug," said Kathryn Aikin of the FDA's division of drug marketing, advertising and communications.
At a two-day conference that began yesterday, the FDA is hearing from a broad range of private and academic researchers about the effects of the $2.7 billion that the pharmaceutical industry now spends annually on television, radio and print advertising. The agency opened the door to wider drug advertising in 1997.
Some critics of the policy have argued that advertising to consumers has played a major role in driving up the nation's fast-rising bill for pharmaceutical drugs, while others have worried that Americans are being persuaded that all of life's problems and complaints can be treated with a pill.
Perhaps most important, however, has been the concern that aggressive advertising campaigns might lead patients to demand new but inappropriate medications and put strains on the doctor-patient relationship. Some of that appears to be happening, with the FDA researchers reporting that 7 percent of general practitioners said they have felt "very pressured" to prescribe heavily advertised drugs and that 6 percent said the advertising has had a very negative effect on their practice.
But the FDA research, as well as studies by academic and private teams, concluded that doctors generally found the advertising to be more beneficial than problematic. In a survey of 500 doctors, the FDA researchers found that 18 percent said drug advertising had created some problems with patients while 41 percent said it had some beneficial effects.
Other researchers reported that drug advertising appears to be having a positive effect on the number of people seeking treatment for depression and high cholesterol, two conditions known to be undertreated.
The quality of the drug advertising research has been questioned by some, who say it relies too much on surveys and self-reporting. The possible problems that can come up were highlighted by researcher Joel Weissman of Massachusetts General Hospital.
His team was told by patients that drug advertising was most likely to cause them to talk to their doctors about allergy, arthritis and cholesterol-lowering drugs. But when doctors were asked what advertising led to the most questions from patients, they said impotence drugs were number one.
Posted on aef.com: September 26, 2003
Marc Kaufman, Washington Post. September 23, 2003
Copyright © 2003 The Washington Post Company. All rights reserved.
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150 West 28th Street, Suite 1001 New York, NY 10001
150 West 28th Street New York New York 10001 US
Taylor Creative's exclusive collection of modern furniture rentals brings a fresh look to any event. With a commitment to high-end design and white-glove customer service, Taylor Creative is the go-to rental choice for the industry's top event planners. Our exclusive selection of products is custom-manufactured in the U.S. or imported from Europe.
With offices in New York and Los Angeles, we service events across the country including:
product launches & press events
movie premieres & green rooms
photo shoots, film sets & television shows
weddings, galas & social affairs
trade show booths & lounges


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Liquid Strings
music agency, musicians for hire, Hire Musicians
Liquid Strings offers live musicians for hire in London and the UK for weddings, corporate events and private parties. A music agency with live wedding musicians, wedding bands, and wedding string quartets that can cater for all your musical requirements. The musicians for hire in Liquid Strings are all professional and experienced in performing in events. You can hire strings for events, live corporate entertainment and much more for all events requiring live music in London.
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Lower Forty Farms
640 Al Highway 28 Catherine, Alabama 36728(334) 627-3620
Print | Save | Directions
AboutLower Forty Farms is located at the address 640 Al Highway 28 in Catherine, Alabama 36728. They can be contacted via phone at (334) 627-3620 for pricing, hours and directions.
Lower Forty Farms has an annual sales volume of 501K - 999,999. .
For maps and directions to Lower Forty Farms view the map to the right. For reviews of Lower Forty Farms see below.
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Hotel Massimo Mishima
Select your stay dates to check availability at Hotel Massimo Mishima
Hotel Massimo Mishima
About the Hotel
Property Location
Hotel Massimo Mishima is in the heart of Mishima, walking distance from Shirataki Park and Ooka Makoto Kotoba Museum. This hotel is within close proximity of Mishima Taisha Shrine and Sano Art Museum.
Make yourself at home in one of the 39 air-conditioned rooms featuring refrigerators and LED televisions. Complimentary wired and wireless Internet access keeps you connected, and digital programming provides entertainment. Private bathrooms with showers feature complimentary toiletries and bidets. Conveniences include desks and coffee/tea makers, and housekeeping is provided daily.
Pamper yourself with onsite massages or make use of the other amenities, which include complimentary wireless Internet access and concierge services. Spending a day of fun is easy with the complimentary theme park shuttle.
Satisfy your appetite at a coffee shop/café serving guests of Hotel Massimo Mishima.
Business, Other Amenities
Featured amenities include complimentary high-speed (wired) Internet access, a computer station, and complimentary newspapers in the lobby.
Hotel Facilities
- Free theme park shuttle
- Free wired high-speed Internet
- Year Built 2006
- Free WiFi
- Free newspapers in lobby
- Total number of rooms - 39
- Designated smoking areas
- Laundry facilities
- Number of floors - 6
- Shopping center shuttle (surcharge)
- Coffee shop or café
- Safe-deposit box at front desk
- Concierge services
- Dry cleaning/laundry service
- Breakfast available (surcharge)
- 24-hour front desk
- Computer station
- Number of buildings/towers - 5
Room Facilities
- Iron/ironing board (on request)
- Coffee/tea maker
- Slippers
- Blackout drapes/curtains
- Digital TV service
- Hair dryer
- Shower only
- Free toiletries
- Air conditioning
- Private bathroom
- Free bottled water
- Ceiling fan
- Desk
- In-room climate control (air conditioning)
- Microwave (on request)
- Free WiFi
- Free wired high-speed Internet
- Soundproofed rooms
- Bidet
- Daily housekeeping
- Premium bedding
- Refrigerator
- Down comforter
Hotel Policy
Know Before You Go
- Children 12 years old and younger stay free when occupying the parent or guardian's room, using existing bedding.
- The Japanese Ministry of Health, Labour, and Welfare requires all international visitors to submit their passport number and nationality when registering at any lodging facility (inns, hotels, motels, etc. ). Additionally, lodging proprietors are required to photocopy passports for all registering guests and keep the photocopy on file.
The following fees and deposits are charged by the property at time of service, check-in, or check-out.
- Breakfast fee: JPY 800 per person (approximately)
- Self parking fee: JPY 1000 per night (in/out privileges)
The above list may not be comprehensive. Fees and deposits may not include tax and are subject to change.Show all hotel policy Show less hotel policy


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Mbs Type Rod Mill With Low Energy Consumption - Chinaprice: contact company for price
Port: Qingdao, Tianjin, Shanghai or other port requested
Minimum Order Quantity: 1 Set
Supply Ability: 100 Sets per Month as your request
Payment Terms: L/C, D/A, D/P, T/T, Western Union
Quick Details
Condition: New Type: Rod mill, mine mill Capacity(t/h): 0.62-180t/h
Place of Origin: China (Mainland) Brand Name: Hongxing Model Number: MBS
Certificate: ISO9001:2000 Application: Ore, cement, construction Structure: Reasonable
Installation: Engineer guide Color: Orange Warranty: 1 year
Hongxing series crushers are rated as 'China Famous Brand' for superb performance. In addition, Hongxing crusher ranks high in the China Top Ten Crushers list.
Packaging & Delivery
Packaging Detail: Standard export containers, or in bulks, bare main machines, motors and small parts are packed in wooden cases.
Delivery Detail: Within 15 working days after receiving the down payment.
Hongxing High Quality MBS Type Rod Mill:
1. even output granularity
2. reasonable structure
3. wide application
4. high productivity
1. We guarantee that our products are all up to standards set for mining machinery.
2. We will deliver products timely by contract.
3. We will supply you with installation drawings, specifications and operation manual.
4. Lifetime warranty and components for products.
Company Contact:
- Posted By: Henan Hongxing Mining Machinery Co., Ltd.
- Phone: 8637167833171
- Address: Tanxiang Road, Zhengzhou, China
- Email:
- Website: http://hxjqchina.com
Published date: May 28, 2013 -
- Business Description: Henan Hongxing Mining Machinery Co., Ltd. is a joint stock mining
machinery manufacturing enterprise integrated in scientific research,
production and marketing. It is located at the High & New Technology
Industries Development Zone of Zhengzhou, China with an area of 50,000
m2 which includes 15,000 m2 of standard heavy duty industrial workshop.
Equipment are more than 160 pieces, including large and medium sized
metal processing, riveting and installing equipment. There are 960
workers including 80 administrators with secondary and senior
occupational titles and engineering technicians.
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Recent Articles
Author: Jiddu Krishnamurti/ Publisher: HarperCollins Publishers Inc/ ISBN: 9780060648084 Completing reading a J Krishnamurti book is a challenge in itself. Understanding the message and absorbing the concept are the next levels of complexity, once you go up the ladder. However, if we can attain...Read more
Author: Mr. A R K Sarma/ Publisher: Sri Sarada Book House/ ISBN: N/A Creative genius Swami Vivekananda gave guidance to youth of the world and showed the light to all. Mr. A R K Sharma, a Gold medalist in Science and Electronics and Telecom Engineering, wrote this book – Out Of The Box...Read more
Author: Khushwant Singh/ Publisher: Grove Press/ ISBN: 9780802132215 A Fiction Novel: A story of a little known frontier village Mano - Majra (Punjab) - a railway station situated near bank of river Sutlej dividing India & Pakistan. Here the author narrates history of 1947 Summer after...Read more


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ERIC Number: ED245108
Record Type: RIE
Publication Date: 1984-Apr-27
Pages: 13
Abstractor: N/A
Reference Count: 0
Ten Years of Federal Statistics on Vocational Education.
Barnes, Robert E.
An examination was made of Federal program statistics on vocational education during the past 10 years by the Bureau of Occupational and Adult Education of the U. S. Office of Education and the National Center for Education Statistics of the U. S. Department of Education. The study found that despite a mandate for reform, the National Center's data from the Vocational Education Data System (VEDS) exhibited many of the same basic defects as the previous system. The two systems appear to have been designed to create exaggerated impressions about the scope and effectiveness of the program, as well as to sustain certain official "myths" embedded in the authorizing legislation. They have done this by manufacturing inflated program statistics, marketing inflated programs claims, and protecting inflated numbers from embarrassment. Four recommendations for reform were made: (1) do not confuse official numbers with information, (2) combat the tunnel vision of categorical programs, (3) end the conspiracy of polite silence about bad numbers, and (4) urge more restraint on legislators who demand accountability that is not feasible. (Author/KC)
Publication Type: Speeches/Meeting Papers; Opinion Papers
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Vocational Education Data System
Note: Paper presented at the Annual Meeting of the American Educational Research Association (68th, New Orleans, LA, April 23-27, 1984).