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Pure Bioscience v. Ross Systems

September 8, 2008


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge


Pending before the Court is Defendant Ross Systems, Inc.'s motion to dismiss Plaintiff Pure Bioscience's Second Amended Complaint ("SAC"). The Court takes the matter under submission and without oral argument. See S.D. Cal. Civ. R. 7.1(d.1). For the following reasons, the Court DENIES the motion (Doc. No. 27).


The facts relevant to this motion are as follows.

Plaintiff Pure Bioscience ("Pure") is an El Cajon, California company engaged in complex process manufacturing in the chemical and life sciences industry. (SAC ¶¶1, 4.) Defendant Ross Systems, Inc. ("Ross"), is a Delaware corporation with its principal place of business in Atlanta, Georgia. (Id. ¶2.) Ross markets the "iRenaissance" software package which purportedly helps chemical and life science manufacturers manage inventory and streamline production. (Id. ¶5.)

In July 2005, Pure and Ross started negotiating a deal whereby Pure would buy and implement the iRenaissance software package. (SAC ¶6.) Ross allegedly represented that iRenaissance would improve productivity, track inventory, and was easy to use. (Id.) Ross also allegedly made scores of other promises regarding iRenaissance's industry-specific capabilities. (Id.) In August 2005, Ross demonstrated to Pure a seemingly successful small-scale test of the iRenaissance package. (Id. ¶7.) On March 30, 2006, Pure and Ross executed the (1) Software License and Professional Agreement ("License Agreement") and (2) Statement of Work and Master Work Order for Pure Bioscience ("Work Statement"). (See SAC, Ex. 4 [License Agreement], and Ex. 5 [Work Statement].)

Under the License Agreement, Ross granted Pure a nonexclusive software license and promised to provide maintenance services for one year. (License Agreement §§2(A), 4(A).) Ross also warranted that the iRennaissance software would operate in substantial conformance with specifications set forth in the Software documentation. (Id. § 7(B).) The License Agreement also provided that the sole and exclusive remedy for breach of this warranty was the License Agreement's provision for maintenance services. (Id.)

Under the Work Statement, Ross agreed to assist Pure in implementing the iRenaissance software package. (Work Statement 3.) Pure, in preparation for the implementation, bought $35,000 worth of computer hardware. (SAC ¶10.)

On July 17, 2006, Ross started implementing the iRenaissance software on Pure's computer system. (Id. ¶11.) Numerous problems followed. (Id.) Pure alleges that the iRenaissance software did not perform as promised and Ross' implementation efforts and support staff were woefully deficient. (Id. ¶¶11--28.)

In late 2006 through first quarter 2007, Pure allegedly communicated to Ross dissatisfaction with the iRenaissance software and installation and gave Ross many opportunities to remediate the problems. (Id. ¶29.) Ross allegedly did not do so. (Id.) On June 18, 2007, Pure allegedly provided Ross with a notice of rejection and/or revocation of acceptance. (Id. ¶30.)

On June 20, 2007, Pure filed an action against Ross in this Court alleging breach of contract, breach of express and implied warranty, and rejection of goods and/or revocation of acceptance. Generally, Pure alleged that it had paid Ross $159,054.96 and received nothing of value in return. On September 12, 2007, Ross moved to dismiss Pure's complaint. On October 24, 2007, Pure filed an amended complaint on roughly the same facts, and on October 30, 2007, the Court denied Ross's motion to dismiss the original complaint as moot.

On November 13, 2007, Ross moved to dismiss the amended complaint. By order date April 4, 2008 (the "Order"), the Court granted Ross' motion without prejudice. On May 1, 2008, Pure filed the SAC. Ross' third motion to dismiss followed.


Rule 12(b)(6) permits the court to dismiss a complaint, or a count therein, for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under this rule tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Dismissal of a claim according to this rule is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). However, where the facts and dates alleged in the complaint indicate the claim is barred by the statute ...

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