The opinion of the court was delivered by: Honorable David O. Carter, Judge
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera Not Present Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT
PROCEEDING (IN CHAMBERS): ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS AND DENYING MOTION TO STRIKE AS MOOT
Before the Court is (1) Defendants' Wolfgang Kormann and Kormann Rockster Recycler, GmbH ("KRR") (collectively, "Defendants") Motion to Dismiss the First and Third Causes of Action of Plaintiff's First Amended Complaint ("FAC") (Dkt. 25) and (2) Defendants' Motion to Strike Plaintiff's Claim for Punitive Damages and Request for Attorney's Fees (Dkt. 26). The Court finds these matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. Accordingly, the matters are REMOVED from the Court's January 23, 2012 calendar.
After considering the moving, opposing and reply papers, and for the reasons stated below, the Court hereby GRANTS the Motions to Dismiss. The Motion to Strike is DENIED as moot.
Richard B. Holt ("Plaintiff") alleges that, on or about September 23, 2009, Stephane Guerchon ("Guerchon"), acting as principal, officer, and/or manager of the North American territory for Kormann Rockster Recycler ("KRR") negotiated the sale of a Rockster concrete crusher with Plaintiff. (FAC ¶¶ 8-10.) In urging Plaintiff to sign a purchase order and transfer a required deposit for a used concrete crusher, Guerchon allegedly made several untrue representations, including a representation that a demo unit was available for sale and fit for use. (Id. ¶ 11.) The next day, Plaintiff allegedly entered into a written purchase order agreement for a Rockster R1100 demo unit ("demo unit") with Defendants based on the belief that Guerchon was KRR's manager for North America, as represented by Kormann. (Id. ¶¶ 12-13.) The demo unit was allegedly a large concrete crushing machine used for recycling broken concrete and required a 10% deposit of €35,237, which is equivalent to $52,200 (the "deposit"). (Id. ¶ 14.)
On or about October 1, 2009, Plaintiff allegedly wire transferred the deposit for the demo unit to KRR's bank account. (Id. ¶ 15.) The next day, Guerchon allegedly made statements which caused Plaintiff to believe that the demo unit described on the original purchase order was unavailable for sale and not fit for use. (Id. ¶ 17.) Specifically, Guerchon allegedly informed Plaintiff that the demo unit was not what Plaintiff wanted, that KRR could not guarantee the demo unit's condition, and that the demo unit was not fit for use. (Id. ¶ 16.) Guerchon also allegedly told Plaintiff that the demo unit was not in his best interest and that he should instead purchase a more expensive unit. (Id.)
Around October 16, 2009, Plaintiff, via email, allegedly requested a return of the deposit. . ¶ 18.) That same day, Wolfgang Kormann ("Kormann"), acting as a chief officer, principal, and/or manager of KRR, allegedly denied Plaintiff's request and fraudulently stated that a new unordered machine had been assembled and was specially made for the U.S. market. (Id. ¶ 19.) Plaintiff claims that he did not agree to or sign any contract or purchase order for a new R1100 unit customized for the U.S. market and that Defendants continue to retain possession of Plaintiff's deposit. (Id. ¶ 20.)
Defendants filed previously a motion to dismiss Plaintiff's complaint, which the Court granted in part and denied in part (Dkt. 19). Plaintiff filed his FAC on October 21, 2011, asserting claims for (1) intentional misrepresentation, (2) common count -- money had and received, and (3) negligent misrepresentation. Defendants move to dismiss the ...