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Neu v. Terminix International

July 24, 2008

BARBARA NEU, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
TERMINIX INTERNATIONAL, INC.; THE TERMINIX INTERNATIONAL COMPANY; THE SERVICEMASTER COMPANY; SERVICEMASTER CONSUMER SERVICES; AND SERVICEMASTER CONSUMER SERVICES LIMITED PARTNERSHIP, DEFENDANTS.



The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING IT IN PART

Defendants Terminix International, Inc., The Terminix International Company Limited Partnership, The Servicemaster Company, Servicemaster Consumer Services, Inc., and Servicemaster Consumer Services Limited Partnership have filed a motion to dismiss Plaintiff Barbara Neu's first amended complaint (FAC). Plaintiff opposes the motion. The motion is decided on the papers. Having considered the papers filed by the parties, the Court grants in part the motion to dismiss and denies it in part.

BACKGROUND

On December 27, 2007, Plaintiff filed the original complaint in this putative class action, alleging claims based on services she alleges she contracted with Defendants to perform. The complaint alleged claims for (1) breach of contract and warranty; (2) equitable relief; (3) breach of duty to warn; (4) negligent training, supervision and retention; (5) violation of California Business and Professions Code § 17500; (6) violation of California Business and Professions Code § 17200; and (7) violation of California's Consumer Legal Remedies Act, California Civil Code § 1750.

Defendants previously moved pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) to dismiss the claims against them. Defendants argued that Plaintiff failed to state a claim upon which relief could be granted and that she failed to plead averments of fraud with the particularity required by Rule 9(b). The Court granted Defendants' motion, finding that (1) Plaintiff failed to identify the contract or contracts or the specific terms of those contracts that she alleged to have been breached; (2) equitable relief is not an independent cause of action; (3) as plead, Plaintiff's negligence claim was barred under the economic loss doctrine; (4) Plaintiff's failure to warn claim was identical to her breach of contract claim; (5) Plaintiff's statutory claims were based on allegations of fraud which were not plead with the requisite particularity; and (6) Plaintiff failed to allege facts sufficient to support a finding that the ServiceMaster Defendants were liable for the Terminix Defendants' acts. The Court advised Plaintiff that she could file an amended complaint if she remedied these deficiencies. Plaintiff filed her FAC on April 28, 2008. Plaintiff again alleges claims for (1) breach of contract and warranty; (2) "professional negligence, wantonness and recklessness"; (3) violation of California Business and Professions Code § 17500; (4) violation of California Business and Professions Code § 17200; and (5) violation of California's Consumer Legal Remedies Act, California Civil Code § 1750.

LEGAL STANDARDS

As stated in the Court's order regarding the first motion to dismiss, when considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed. R. Civ. P. 9(b). The allegations must be "specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985).

DISCUSSION

I. Timeliness of Motion

Plaintiff first argues that Defendants' motion to dismiss was not timely filed under Federal Rule of Civil Procedure 15(a)(3) and, therefore, the Court should not consider it. However, a motion to dismiss is not a responsive pleading within the meaning of Rule 15(a). CRST Van Expedited, Inc. v. Werner Enters., Inc., 479 F.3d 1099, 1104 n.3 (9th Cir. 2007); Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000). And, the Federal Rules of Civil Procedure do not set a specific deadline by which a 11 Rule motion to dismiss must be filed. See Wright & Miller, Federal Practice and Procedure § 1391. Moreover, in its order dismissing the original complaint, the Court instructed Defendants to notice their motion to dismiss for July 24, 2008. The Court finds that the motion is not untimely.

II. Claim for Breach of Contract and Warranty

In granting leave to amend, the Court advised Plaintiff she must "append any contract or contracts she alleges have been breached and shall indicate the contract terms upon which she bases her claims." Plaintiff has attached a contract to the FAC. As Defendants point out, the contract was signed by an individual named Bruce Whitney, not Plaintiff. See FAC, ex. 1. In opposition, Plaintiff submits a declaration stating that Bruce Whitney was a contractor she hired to work on her house while she was away, whom she authorized to enter into the contract on her behalf. Defendants argue that even if this is true, these facts must be included in the complaint. Indeed, Plaintiff should have included such allegations in her complaint and it is not clear why she did not. Nonetheless, the complaint alleges that Plaintiff entered into the May, 1999 contract "by and through her agents, servants, and/or employees." FAC ¶ 27. The Court will not require Plaintiff to amend her complaint to include specific allegations about Whitney. Defendants next argue that Plaintiff has not identified which contract terms she alleges have been breached. However, Plaintiff identifies seven specific promises, each of which appears in the contract. Therefore, the Court denies Defendants' motion to dismiss Plaintiff's breach of contract claim.

III. Negligence Claim

The Court dismissed Plaintiff's negligent training, supervision and retention claim with leave to amend if Plaintiff could allege facts sufficient to establish the existence of a duty beyond that created by the contract. Plaintiff asserts that Defendants owe her a duty "arising out of" California Business and Professions Code §§ 8516 and 8560 and California Code of Regulations Title 16 §§ 1937 and 1990. Opposition at 8. However, neither the statutes nor the regulations cited create any such duty. Rather, they regulate Defendants' performance of services under the contract. See, Cal. Bus. & Prof. Code § 8516(b) (Failure to comply with certain provisions "is grounds for disciplinary action and shall subject the registered company to a fine of not more than two thousand five hundred dollars."). None of the cited statutes or regulations states that consumers have a private right of action. ...


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