United States District Court, N.D. California
December 13, 2005.
JAVAD TREW, Plaintiff,
INTERNATIONAL GAME FISH ASSOCIATION, INC., and DOES 1 through 20, Defendants.
The opinion of the court was delivered by: CLAUDIA WILKEN, District Judge
ORDER GRANTING MOTION TO DISMISS
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
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
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. § 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
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 complaint
properly alleged contract between the parties which was formed in
connection with the application plaintiff had submitted to
defendant), the Applications at issue here do not constitute a
contract because of the absence of mutual assent.
Even if the Applications are treated as contracts, Plaintiff
fails to state that Defendant has breached them. Plaintiff
alleges that Defendant was contractually obliged to award him the
world records subject to the rules and requirements of the 2004
Application and the 2004 World Record Requirements. This is all
that Defendant promised and it delivered on its promise by
requesting a polygraph test to determine the authenticity of
Plaintiff's statements in the Applications before awarding the
world records. In doing so, Defendant complied with the
directions on the Application to verify world record claims using
"verification procedures." FAC Ex. 1-4. Plaintiff consented to
Defendant's use of verification procedures and the result thereof
when he agreed "to be bound by any ruling of the IGFA relative to
this application." FAC Ex. 1-4. Thus, based on the language in
the Application and the World Record Requirements, the FAC fails
to allege a cause of action for breach of contract.
Plaintiff argues that the term "verification procedures" in the
Application is unenforceable because it is vague, ambiguous and
insufficiently definite. Under California law, when a contract
"is so uncertain and indefinite that the intention of the parties
in material particulars cannot be ascertained, the contract is void
and unenforceable." Robinson & Wilson, Inc. v. Stone,
35 Cal. App. 3d 396, 407 (1973). To be enforceable, a contract must be
definite enough that a court can determine both the scope of the
duties and the limits of performance involved in the contract,
such that it has a rational basis for assessing damages. Id.
The language of the Application is unambiguous and expressly
reserves Defendant's right to employ verification procedures to
test the truth of the claims. Therefore, the phrase "verification
procedures" is enforceable.
Plaintiff further asserts that the overriding issue in this
case is whether Defendant could require him to take a polygraph
to verify the Applications. Nothing in the 2004 Application and
the 2004 World Record Requirements limits the verification
procedures available to Defendant. Contrary to Plaintiff's claim,
there is no need for this Court to consider the "admissibility"
of a polygraph test because Plaintiff never took this test and
such a test is not being submitted as evidence.
Therefore, in the absence of a contract or the breach thereof,
Plaintiff cannot state a claim for relief. For this reason, the
Court grants Defendant's motion to dismiss with leave to amend.
At the November 18, 2005 hearing, the Court stated that if
Plaintiff chose to file an amended complaint, he must make
allegations that indicate that this Court has subject matter
jurisdiction and that if he claims jurisdiction based on
diversity of citizenship, he must allege facts indicating that he
could be awarded more than $75,000 in damages pursuant to 28 U.S.C. § 1332(a)(1).*fn3
See McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
189 (1936) (party invoking jurisdiction bears burden of
establishing good faith expectation of recovery of at least the
jurisdictional amount). At the hearing, the Court indicated that
if Plaintiff chose to file an amended complaint, he must do so
within two weeks from the date of the hearing.
More than two weeks have passed since the date of the hearing
and Plaintiff has not filed an amended complaint. Therefore, this
case is dismissed without prejudice to refiling in State court.
For the foregoing reasons, Defendant's motion to dismiss
Plaintiff's complaint (Docket no. 13) is GRANTED. The complaint
is dismissed without prejudice to refiling in State court.
IT IS SO ORDERED.
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