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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JIM ROAKE,

Plaintiff,

v.

FELDMAN SHERB & CO., a

corporation, GRASSI & CO., a

corporation, EXACT ID, a

corporation (previously known as

ADVANCED PRECISION TECHNOLOGY,

INC.), and DOES 1 through 10,

 Defendants.

CIV. S-04-2513 GEB PAN PS

ORDER

-o0oPlaintiff commenced this action in pro se on October 4,

2004, in the Sacramento County Superior Court (Case No.

04AS03986), alleging breach of contract and negligence by

defendants Feldman Sherb & Co. (“Sherb”) and Grassi & Co.

(“Grassi”) in providing accounting services to defendant Exact

ID. Plaintiff contends that as a result of defendants’ actions 

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the SEC suspended Exact ID resulting in a diminution in the value

of Exact ID stock and a loss to plaintiff of more than $10

million. Plaintiff asserts he pursues this action on behalf of

Exact ID but “has not made efforts to secure corporation or

shareholder approval against Grassi [and Sherb] in that it was

deemed it would be futile in that the corporation does not have

the funds with which to finance litigation.” Complaint, ¶¶ 12,

13.

Defendants Sherb and Grassi, New York corporations

represented by the same law firm, timely removed this action to

federal court on November 24, 2004, pursuant to 28 U.S.C. §§

1332(a) (diversity) and 1441(b) (removal based upon this court’s

original subject matter jurisdiction). These defendants explain

that Exact ID is a nominal defendant who may be realigned as a

plaintiff, thus meeting their burden to explain the absence of

Exact ID in the notice of removal. See Prize Frize, Inc. v.

Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999) (“Where

fewer than all the defendants have joined in a removal action,

the removing party has the burden under section 1446(a) to

explain affirmatively the absence of any co-defendants in the

notice for removal”).

Attorney John H. Eikemeyer, of Vedder Price Kaufman &

Kammholz P.C., 805 Third Avenue, New York, 10022, has been

retained in this matter by defendants Sherb and Grassi, and has

paid the requisite fee to apply for admittance to this court pro

hac vice. The court has reviewed his application and finds that

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Mr. Eikemeyer is a lawyer in good standing admitted to practice

in the Ninth Circuit Court of Appeals. Mr. Eikemeyer’s

application to appear in this court pro hac vice is granted.

Plaintiff and defendants Sherb and Grassi have filed

status reports, but neither report is helpful. Plaintiff fails

to state whether Exact ID has been served and suggests there may

be a question “whether this matter is required to be arbitrated.” 

Defendants anticipate filing motions to transfer this case to a

district court in New York, a motion to dismiss for lack of

personal jurisdiction, and a motion for summary judgment based on

plaintiff’s lack of standing, but decline to offer proposed

deadlines for discovery “[i]nasmuch as the case should be

disposed of long before either discovery or expert witness

disclosure becomes necessary.” 

Defendants shall file and serve, within thirty days of

service of this order, any motion for change of venue or

dismissal for lack of personal jurisdiction or, alternatively, a

status report prepared jointly with plaintiff which provides the

specific information ordered November 2004. Plaintiff may file

an opposition to any motion filed by defendants within twenty

days of service of the motion; defendants may file a reply within

ten days of service of plaintiff’s opposition. Should defendants

file a joint status report, failure of plaintiff to fully

participate therein shall be grounds for the imposition of

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sanctions.

So ordered.

Dated: November 9, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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