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Aleo Solar Deutschland Gmbh v. Innovative Mechanical and Electrical

August 28, 2012


The opinion of the court was delivered by: Otis D. Wright, II United States District Judge


Pending before the Court is Defendants Karin Thyssen and Manfred Thyssen's Motion to Dismiss Plaintiff Aleo Solar Deutschland GmbH's First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6).*fn1 (ECF No. 17.)


Aleo is engaged in the global sale of solar panels and other solar energy related equipment. (FAC ¶ 1.) In February 2009, Defendant Innovative Mechanical and Electrical, Inc. and the Thyssens, who are allegedly agents of Innovative, solicited Aleo to provide solar panels for installation on California residences. (Id. ¶¶ 4, 9.) Innovative ordered two shipments of solar panels from Aleo in February and March of 2009, and received invoices for these shipments. (Id. ¶¶ 10, 14.)

The Thyssens represented to Aleo, by way of telephone calls and email, that they would furnish payment for the shipments within two weeks after they received the panels. (Id. ¶ 16.) Karin Thyssen further executed an "Assignment of Rebate" with Aleo that purported to assign funds from tax rebates to Aleo as a way to secure payment for the shipments. (Id. ¶ 17; Ex. 6.) On March 10, 2009, Aleo sent the first shipment of panels to Innovative, complying with the terms of the contract. (Id. ¶ 18.) Innovative received the first shipment on April 5, 2009. (Id. ¶ 20.) Shortly thereafter, Karin Thyssen informed Aleo that Innovative could not make the payments for the first shipment at that time. (Id. ¶¶ 21.)

On May 12, 2009, Aleo sent the second shipment of solar panels to its U.S. warehouse, but because it still had not received payment for the first shipment, Aleo withheld final release of the second shipment to Innovative. (Id. ¶¶ 22, 24.) From May through November of 2009, Innovative made partial payments ($61,140.02) for the first shipment, and continuously represented that the remainder of the full payment ($334,916.70) would be forthcoming. (Id. ¶¶ 23, 24.) But Aleo never received full payment for the first shipment or any tax rebates. (Id. ¶ 23.) In November 2009, Innovative indicated that it no longer wanted the second shipment. (Id. ¶ 25.) Aleo eventually resold this shipment to a different customer to mitigate its damages. (Id. ¶ 31.)

Based on the above allegations, Aleo asserts three causes of action: (1) breach of contract with respect to the first shipment of solar panels and (2) breach of contract with respect to the second shipment of solar panels-both against Innovative; and (3) fraudulent misrepresentation against all Defendants.

The Thyssens' Motion seeks dismissal of the entire complaint, including the first two causes of action solely against Innovative. This they cannot do. L.R. 83-2.10.1. Because Innovative is a corporation, it must be represented by an attorney. Therefore, to the extent that this Motion addresses dismissal of claims against Innovative, those portions are ignored.


Dismissal under Rule 12(b)(6) can be based on "the lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement-to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); Fed. R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its "[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 (2007). While specific facts are not necessary so long as the complaint gives the defendant fair notice of the claim and the grounds upon which the claim rests, a complaint must nevertheless "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Iqbal's plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," but does not go so far as to impose a "probability requirement." Id. Rule 8 demands more than a complaint that is merely consistent with a defendant's liability-labels and conclusions, or formulaic recitals of the elements of a cause of action do not suffice. Id. Instead, the complaint must allege sufficient underlying facts to provide fair notice and enable the defendant to defend itself effectively. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The determination whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 566 U.S. at 679.

When considering a Rule 12(b)(6) motion, a court is generally limited to the pleadings and must construe "[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable to [the plaintiff]." Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). Conclusory allegations, unwarranted deductions of fact, and unreasonable inferences need not be blindly accepted as true by the court. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Yet, a complaint should be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts" supporting plaintiff's claim for relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).


A.Fraudulent ...

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