The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION ON DEFENDANT'S MOTION TO DISMISS
Plaintiff J. Vale y Asociados, S.A. de C.V. ("Plaintiff") is proceeding with an action for breech of contract and fraud against Flight Test Associates, Inc. ("Defendant") pursuant to 28 U.S.C. § 1332. Plaintiff filed its complaint on April 7, 2010. (Doc. 1).
Defendant filed a motion to dismiss on May 9, 2010 on the basis that, inter alia, a forum selection clause requires dismissal of Plaintiff's complaint. (Doc. 5). Plaintiff filed opposition to the motion to dismiss on June 1, 2010. (Doc. 7). Defendant filed a reply to Plaintiff's opposition on July 1, 2010. (Doc. 8).
On or about September 21, 2006, Plaintiff and Defendant entered into a contract pursuant to which Defendant agreed to install certain RVSM equipment on Plaintiff's Saberliner Aircraft ("aircraft"). (Complaint at 2). The parties' contract required Defendant to complete installation of the equipment on Plaintiff's aircraft within seventy-five working days from the date of the contract and within 20 days after delivery of the aircraft to Defendant. (Complaint at 2). On or about October 4, 2006, Plaintiff delivered the aircraft to Defendant, and Plaintiff subsequently made two payments to Defendant pursuant to the terms of the agreement, totaling sixty-thousand dollars. (Complaint at 2).
After Defendant failed to perform its obligations within the time requirements set forth in the parties' contract, Plaintiff communicated its dissatisfaction to Defendant a number of times. (Complaint at 3). On April 11, 2007, Plaintiff made a final demand that Defendant remedy the situation. (Complaint at 3). Defendant responded to Plaintiff's April 11 demand on April 12, 2007, by indicating in an email that Defendant would reassemble the aircraft to its original configuration and provide Plaintiff a full refund of all monies paid to Defendant. (Complaint at 3). On May 31, 2007, in response to inquires from Plaintiff regarding the status of its refund, Defendant stated in an email that John Ligon would be providing the agreed refund and requested instructions on how to return the refund to Plaintiff. (Complaint at 3).
Plaintiff recovered the aircraft from Defendant on June 6, 2007. (Complaint at 3). On June 13, 2007, Defendant informed Plaintiff by email that it would not provide Plaintiff a full refund. (Complaint at 3).
Plaintiff alleges that it suffered at least $60,000.00 in lost profits due to the time Plaintiff was deprived of use of the aircraft, in addition to the $60,000.00 it paid Defendant for work that was not completed. (Complaint at 3).
Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).
The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations" in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). "When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). "A court may, however, consider certain materials-documents ...