Free Order on Motion to Dismiss - District Court of Colorado - Colorado

Case 1:04-cv-01225-MSK-BNB

Document 193

Filed 09/16/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable M arcia S. Krieger Case No. 04-M K-1225 (BNB) (Consolidated with 04-M K-1226 (BNB)) M ALIK M . HASAN, M .D., SEEM E G. HASAN, Plaintiffs, v. GOLDM AN SACHS 1998 EXCHANGE PLACE FUND, L.P., a Delaware limited partnership, GOLDM AN SACHS 1999 EXCHANGE PLACE FUND, L.P., a Delaware limited partnership, GOLDM AN SACHS M ANAGEM ENT PARTNERS, L.P., a Delaware limited partnership, GOLDM AN SACHS M ANAGEM ENT, INC., a Delaware corporation, THE GOLDM AN SACHS GROUP, INC., a Delaware corporation, GOLDM AN, SACHS & CO., a New York limited partnership, JOHN DOES 1-100, individual persons whose true identities are unknown, LENDER PARTIES 1-100, business entities whose true identities are unknown,

Defendants.

ORDER DENYING MOTIONS TO DIS MIS S (#88, #90), WITHOUT PREJUDICE

THIS M ATTER comes before the Court on two motions to dismiss (#88, #90) filed by the Defendants. Having considered both motions, the Court FINDS and CONCLUDES that: The Plaintiffs assert fifteen claims for relief in their Second Amended Complaint: (1) a violation of the Securities Exchange Act, Section 10(b) and Rule 10b-5; (2) a violation of the Colorado Securities Act; (3) common law fraud and deceit; (4) a violation of the Colorado Organized Crime Control Act; (5) breach of fiduciary duties; (6) gross negligence; (7) intentional

Case 1:04-cv-01225-MSK-BNB

Document 193

Filed 09/16/2005

Page 2 of 3

interference with prospective business advantage; (8) civil conspiracy; (9) breaches of contract; (10) breaches of the implied covenant of good faith and fair dealing; (11) breach of contract - third party beneficiary; (12) a violation of the Colorado Consumer Protection Act; (13) unjust enrichment; (14) declaratory judgment - indemnification; and (15) appointment of receiver with designated powers. These claims are premised upon allegations that the Defendants solicited the Plaintiffs to purchase limited partnership units in the 1998 and 1999 Exchange Funds, made representations to the Plaintiffs regarding the advantages of this investment, failed to fully disclose material facts which would have affected the Plaintiffs' decision to invest, and failed to act in the best interest of the 1998 and 1999 Exchange Funds and the Plaintiffs. The Defendants seek to dismiss all of the Plaintiffs' claims under Fed. R. Civ. P. 12(b)(6) and (9). They argue that: (1) all claims are barred either by the statute of limitations or the doctrine of laches; (2) all claims fail to state claims for relief; (3) the Plaintiffs allege no facts supporting claims against Defendant Goldman Sachs Group; and (4) the Plaintiffs have failed to plead fraud with particularity. This matter has been set for a two-day evidentiary hearing to determine whether the parties agreed to arbitrate the Plaintiffs' claims. As a result, a ruling on the merits of the motions to dismiss would be advisory and, therefore, improper. IT IS THEREFORE ORDERED that the motions to dismiss (#88, #90) are DENIED, without prejudice. The Defendants may renew these motions or file an Answer within 10 days

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Case 1:04-cv-01225-MSK-BNB

Document 193

Filed 09/16/2005

Page 3 of 3

after the Court determines whether the parties agreed to arbitrate. Dated this 16th day of September, 2005. BY THE COURT:

M arcia S. Krieger United States District Judge

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