UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 26, 2010
EXXONMOBIL OIL CORPORATION, PLAINTIFF,
NICOLETTI OIL, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Hon. Oliver W. Wanger
ORDER REGARDING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT
Hearing Date: May 10, 2010
The motion of Defendants Nicoletti Oil, Inc., Dino J. Nicoletti and John A. Nicoletti (collectively, "Defendants") to dismiss Plaintiff ExxonMobil Oil Corporation's ("Plaintiff") First Amended Complaint under Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure came on regularly for hearing before this Court. All parties received notice and an opportunity to be heard. After considering the pleadings and memoranda submitted by the parties, and all supporting papers, and having heard the arguments of counsel, and good cause appearing therefor, IT IS HEREBY ORDERED that:
1. Defendants' motion to dismiss Plaintiff's claim for express contractual indemnity is GRANTED with leave to amend. The First Amended Complaint fails to allege facts sufficient to support the notion that defendant Dino Nicoletti is personally liable under the contracts at-issue.
2. Defendants' motion to dismiss Plaintiff's express contractual indemnity claim on the basis of the statute of limitations is DENIED.
3. Defendants' motion to dismiss Plaintiff's claim for negligence is GRANTED with leave to amend. In order to establish a special relationship giving rise to a duty of care, Plaintiff must allege facts which demonstrate that Defendants' had actual knowledge that their conduct would directly affect Plaintiff. The First Amended Complaint lacks the necessary allegations. The First Amended Complaint sufficiently pleads a breach of duty.
4. Plaintiff shall file an amended complaint within fifteen (15) days of entry of this Order.
5. Defendants shall file a response within fifteen (15) days of service of the amended complaint.
IT IS SO ORDERED.
Oliver W. Wanger UNITED STATES DISTRICT JUDGE
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