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December 13, 2005.

JAVAD TREW, Plaintiff,

The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge


Defendant International Game Fish Association, Inc., (IGFA) moves, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the first amended complaint (FAC) filed by Plaintiff Javad Trew. Plaintiff opposes the motion. The matter was heard on November 18, 2005. Having considered the papers filed by the parties and oral argument on the motion, the Court grants Defendants' motion to dismiss without prejudice to refiling in State court.


  Plaintiff's complaint and the attached exhibits allege the following. On or about March 29, 2004, Plaintiff submitted a 2004 IGFA World Record Application (Application) for a world record in largemouth bass two-pound tippet fly fishing. He also enclosed a $50.00 check for IGFA membership and the Application processing fee. On or about April 14, 2004, Plaintiff submitted a 2004 Application for a world record in largemouth bass four-pound tippet fly fishing. He enclosed a $25.00 check for the Application processing fee. On or about April 28, 2004, Plaintiff submitted a 2004 Application for a world record in largemouth bass twenty-pound tippet fly fishing. He enclosed a $25.00 check for the Application processing fee. On or about May 23, 2004, Plaintiff submitted a 2004 Application for a world record in largemouth bass two-pound line class, rod and reel. He enclosed a $25.00 check for the Application processing fee.*fn1 Plaintiff fulfilled the requirements of the 2004 Applications by signing the accompanying notarized affidavit and submitting evidence such as photographs, samples of his fishing lines and the signed testimony of witnesses to the weighings of his award-sized catches.

  Each above referenced Application bears the following statements under a section marked "Affidavit": "I understand that IGFA reserves the right to employ verification procedures. I agree to be bound by any ruling of the IGFA relative to this application." FAC Ex. 1-4. The following information appears at the top of each Application: "Read all IGFA angling rules and world record requirements before completing and signing this application. . . . This application must be accompanied by line or tippet samples and photographs as specified in the World Record Requirements." FAC Ex. 1-4. The 2004 IGFA "International Angling Rules, Rules for Fishing in Fresh Water, and Rules for Fly Fishing" (World Record Requirements) state that,
1. Protested applications or disputed existing records will be referred to the IGFA Executive Committee for review. Its decision will be final. IGFA reserves the right to refuse to consider an application or grant a claim for record application. All IGFA decisions will be based upon the intent of the regulations. . . .
3. In some instances, an IGFA officer or member of the International Committee or a deputy from a local IGFA member club may be asked to recheck information supplied on a claim. Such action is not to be regarded as doubt of the formal affidavit, but rather as evidence of the extreme care with which IGFA investigates and maintains its records.
Defs.' Mot. to Dismiss Ex. A at 3.*fn2

  On or about January 18, 2005, IGFA representatives Ray Scott, member of IGFA Board of Trustees, Robert Cramer, President of IGFA and Jason Schratweiser, World Record Administrator of IGFA, telephoned Plaintiff and requested that he take a polygraph test to verify the information in his submitted Applications. Scott told Plaintiff that Scott would use Plaintiff for endorsements and that Plaintiff's awards would be "worth a lot of money." Plaintiff refused IGFA representatives' request to take a polygraph test. Defendant did not award Plaintiff any world records.

  Plaintiff sues Defendant for breach of contract, alleging that Defendant failed and neglected to perform the agreement by refusing to award the world records to Plaintiff even though he complied with all 2004 IGFA rules and requirements. He seeks general damages according to proof and damages of loss of property, loss of income and loss of profits, all according to proof. In addition, Plaintiff alleges that there is an actual controversy between Plaintiff and Defendant as to whether Plaintiff must undergo a polygraph test to be awarded his world records. He seeks declaratory relief for this bona fide dispute under Title 28 U.S.C. ยง 2201 and Federal Rules of Civil Procedure 8(a), and 57. Finally, Plaintiff demands judgment requiring Defendant to perform the agreement and officially award Plaintiff the four world records, retroactive to the dates of the Applications.


  A motion to dismiss for failure to state a claim will be denied unless it appears that the plaintiff can prove no set of facts which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Fidelity Fin. Corp. v. Fed. Home Loan Bank of S.F., 792 F.2d 1432, 1435 (9th Cir. 1986). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). A court may consider documents which are not expressly incorporated into the complaint, but "upon which the plaintiff's complaint necessarily relies." Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998).

  Dismissal of a complaint can be based on either the lack of a cognizable legal theory or the lack of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). When granting a motion to dismiss, a court is generally required to grant a plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Cook, Perkiss and Liehe, Inc. v. Northern Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment would be futile, a court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).


  Defendant argues that Plaintiff's contract claim fails because the Application is not an agreement manifesting mutual assent. Defendant further argues that even if the Application is treated as a contract, Defendant has properly complied with its terms. Plaintiff contends that the Applications are judicially enforceable contracts because they were written offers by Defendant, which Plaintiff accepted, and the $25.00 Application fee was his consideration for the contract. Pl.'s Opp'n at 12. As such, Plaintiff equates Defendant's refusal to award him the world records to a breach of contractual obligations.

  Whether parties have mutually assented to enter into a contractual relationship is determined with reference to an objective standard. Zurich General Accident & Liability Assurance Co. Ltd. v. Industrial Accident Commission, 132 Cal. App. 101, 103-04 (1933). The outward manifestations or expressions of consent to a contract are controlling; mutual assent is gathered from the reasonable meanings of the words and acts of the parties, not their unexpressed intentions or understandings. Mercer County Sheriff's Employees' Assoc. v. County of Merced, 188 Cal. App. 3d 662, 670 (1987).

  The reasonable meaning of the language in the Applications and in the 2004 World Record Requirements fails to establish that Defendant agreed to award Plaintiff his world records upon submission of the Applications, the processing fees and supporting evidence. Instead, this language merely states that Defendant agrees to review the completed Applications to determine whether or not a world record has been accomplished and to "employ verification procedures" to ensure the accuracy of information contained therein. This language is sufficient to undermine Plaintiff's contention that the Applications are contracts manifesting mutual assent to award Plaintiff the world records. Although Defendant's argument that "applications are not contracts," Defs.' Mot. to Dismiss at 3, is over-broad, see, e.g., Treister v. American Academy of Orthopaedic Surgeons, 396 N.E.2d 1225, 1233 (Ill. 1979) (finding that ...

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