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FNS, Inc. v. Bowerman Trucking

February 9, 2010

FNS, INC., PLAINTIFF,
v.
BOWERMAN TRUCKING, INC.; VISION X-PRESS, INC.; N.E.W.S. LOGISTICS, LLC; VICTORIA LEE BAINE; AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS (Doc. No. 27); and (2) GRANTING DEFENDANT'S MOTION TO STRIKE (Doc. No. 28).

Presently before the Court are Defendant Bowerman Trucking, Inc.'s ("Bowerman") motion to dismiss Plaintiff's first amended complaint (Doc. No. 27) and motion to strike portions of Plaintiff's first amended complaint. (Doc. No. 28.) Plaintiff filed an opposition to each motion, and Bowerman filed replies.

The Court finds the motions suitable for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1). For the reasons stated herein, the Court GRANTS IN PART and DENIES IN PART the motion to dismiss, and GRANTS the motion to strike.

FACTUAL BACKGROUND

This matter involves a shipment of cargo allegedly lost by the defendants. The following facts are drawn from the First Amended Complaint ("FAC").

Plaintiff FNS, Inc. ("Plaintiff") is a logistics company that provides freight forwarding, logistics, and transportation services, among other things. (FAC ¶ 8.) Plaintiff entered into an agreement with LG Electronics Mobilecomm U.S.A., Inc., to provide transport and freight forwarding services for shipments of consumer electronics. (FAC ¶ 9.) About June 30, 2008, Plaintiff and Bowerman entered into a contract under which Bowerman agreed to provide transportation services. (FAC ¶ 10.) Plaintiff alleges Bowerman, acting through its agent Defendant Victoria Lee Baine ("Baine"), undertook to transport a shipment of LG Electronics cellular phones. (FAC ¶ 11.)

Plaintiff alleges Bowerman's subcontractor or agent Defendant Vision X-Press, Inc. ("Vision"), picked up the shipment in Calexico, California, on June 30, 2008. (FAC ¶ 12.) According to Plaintiff, Vision left the shipping container containing the shipment of cellular phones unattended at a public area, and the shipment was stolen. (FAC ¶ 14.)

LG Electronics has claimed against Plaintiff the value of the shipment of cellular phones, believed to be in excess of $1,926,540. (FAC ¶ 17.) Plaintiff has partially or fully paid LG Electronics. (FAC ¶ 17.) Subsequently, Plaintiff brought suit against the defendants for indemnity, in addition to other claims.

PROCEDURAL BACKGROUND

On February 18, 2009, Plaintiff filed suit in the Superior Court of the State of California, County of Imperial against Defendants Bowerman, Vision, N.E.W.S. Logistics, LLC, Baine, and Does 1 through 20. (Doc. No. 1.) On April 24, 2009, Bowerman removed the action to this Court. (Doc. No. 1.) Bowerman filed an answer and a cross-claim against the other defendants. (Doc. Nos. 3 & 4.) On May 21, 2009, the Clerk of Court entered default as to all defendants except Bowerman, pursuant to Plaintiff's request. (Doc. No. 7.)

On November 9, 2009, upon being granted leave of the Court, Plaintiff filed the FAC. (Doc. No. 25.) Plaintiff's FAC sets forth seven causes of action: (1) negligence; (2) indemnity under the Carmack Amendment, 49 U.S.C. § 14706; (3) indemnity under state common-law; (4) contribution; (5) declaratory relief; and (6-7) two separate causes of action for breach of contract.

On December 1, 2009, Defendant Bowerman filed the instant motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. No. 27), and motion to strike pursuant to Rule 12(f) (Doc. No. 28).

DISCUSSION

I. Motion to Dismiss

A. Legal Standard

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a) (2009). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). A court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009). In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the ...


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