ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

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ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

CLAUDIA WILKEN, District Judge.

Defendants Euan S. Thomson, Wayne Wu, Li Yu, Robert S. Weiss, Elizabeth Dávila, John P. Wareham, Robert E. McNamara, John R. Adler, Jr. and nominal Defendant Accuray Incorporated move to dismiss this shareholder derivative complaint. Derivative Plaintiffs Thomas Beebe, Sanjayh Israni, Eric Bachinski and Christopher Borrelli oppose the motion. The matter was heard on August 12, 2010. Having considered all of the papers filed by the parties and oral argument on the motion, the Court GRANTS Defendants' motion to dismiss and grants leave to amend.

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CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants' motion to dismiss. Docket No. 35. The complaint is dismissed with leave to amend, although the Court is doubtful that Plaintiffs will be able to plead sufficient particularized facts to establish demand futility in any amended complaint. Any amended complaint shall be filed no later than September 20, 2010. Defendants shall respond by October 7, 2010. If Defendants file a motion to dismiss, Plaintiffs shall file an opposition by October 21, 2010 and Defendants shall file a reply by October 28, 2010. The motion will be heard on November 11, 2010 at 2:00 p.m. If Defendants answer the amended complaint and no motion to dismiss is filed, a case management conference will be held on October 19, 2010 at 2:00 p.m.

IT IS SO ORDERED.