Kim v. Allakos Inc.
- Jeffrey White
- 4:20-cv-01720
- U.S. District Court · Northern District of California
- 2
In Kim v. Allakos Inc., Judge White granted a sur-reply, overruled some objections, vacated a hearing, and ordered supplemental briefing.
Sung Kim and the other plaintiffs, and Allakos Inc. and the other defendants, were affected by the briefing schedule, the ruling on the sur-reply, and the evidentiary rulings; the motion to dismiss remained unresolved.
What happened
In Kim v. Allakos Inc., the defendants asked the court to dismiss the plaintiffs’ Second Amended Complaint. The plaintiffs sought permission to respond to an argument they said the defendants raised for the first time in their reply, and they objected to exhibits filed with that reply.
The court allowed the plaintiffs to file the sur-reply and treated their proposed filing as submitted. It overruled the objections to two exhibits, reserved the objection to another exhibit for the later dismissal ruling, and vacated the scheduled hearing. The court ordered the plaintiffs to file a supplemental brief about whether they could bring claims based on statements made after they bought the stock, followed by a response from the defendants.
The motion to dismiss was not decided in this order; the court said it would rule after the supplemental briefing. Judge Jeffrey S. White issued the order on October 6, 2022.
The detailed version
- Kim v. Allakos Inc. · No. 4:20-cv-01720
- Jeffrey White
- Oct. 6, 2022
Background
The court was scheduled to hear the defendants’ motion to dismiss the plaintiffs’ Second Amended Complaint on October 14, 2022. The plaintiffs filed an administrative motion for permission to file a sur-reply, arguing that the defendants had raised a new argument in their reply brief. The proposed sur-reply addressed both whether the court should consider that argument and the argument’s substance.
The plaintiffs also objected to exhibits submitted with the defendants’ reply. The court stated that Exhibits F and G were transcripts of calls cited in the complaint and could be considered under the incorporation-by-reference doctrine, which can permit consideration of documents referenced in a complaint. The plaintiffs objected to those exhibits only because the defendants relied on them to support the allegedly new argument.
Prior claims and supplemental issue
The court noted that it had previously dismissed the plaintiffs’ claims concerning Phase II trials because the plaintiffs had not alleged that the challenged statements were misleading. The plaintiffs had not substantively amended those claims and said they included them only to preserve them for appeal.
The plaintiffs had added claims based on two statements by defendant Tomasi concerning Phase III trials. The defendants argued that the plaintiffs had purchased their stock before those statements were made and therefore could not state claims based on them. The court ordered supplemental briefing on that argument.
Rulings
The court granted the plaintiffs’ administrative motion for leave to file a sur-reply and deemed the proposed sur-reply filed. It did not require an additional response from the defendants because their opposition already provided enough information for the court to evaluate the argument.
The court overruled the plaintiffs’ objections to Exhibits F and G. It deferred consideration of the objection to Exhibit H until it issued an order resolving the motion to dismiss.
The court vacated the October 14 hearing because it concluded that the motion could be resolved without oral argument. It ordered the plaintiffs to file a supplemental brief of no more than five pages by October 28, 2022, and allowed the defendants to file a response of no more than three pages by November 4, 2022. The court stated that the motion would be considered submitted after the briefs were filed and that it would issue a ruling later. This order did not decide the motion to dismiss.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.