The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ON MOTION TO DISMISS (Doc. 14) PRELIMINARY STATEMENT TO PARTIES AND COUNSEL
Judges in the Eastern District of California carry the heaviest caseload in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. This Court cannot address all arguments, evidence and matters raised by parties and addresses only the arguments, evidence and matters necessary to reach the decision in this order given the shortage of district judges and staff. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Boxer to address this Court's inability to accommodate the parties and this action. The parties are required to consider consent to a Magistrate Judge to conduct all further proceedings in that the Magistrate Judges' availability is far more realistic and accommodating to parties than that of U.S. District Judge Lawrence J. O'Neill who must prioritize criminal and older civil cases.
Civil trials set before Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Judge O'Neill is unavailable on the original date set for trial. Moreover, this Court's Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from outside the Eastern District of California.
On November 2, 2012 Plaintiff William Jake Miller ("Miller") brought this action for violation of the California Unfair Competition Law ("UCL"), Cal. Bus. and Prof. Code §§ 17200, et seq. against Defendants S&S Hay Company ("S&S Hay"), Skye Sauer ("Sauer"), and Ari Schiff ("Schiff") (collectively "Defendants"). Defendants filed the instant motion to dismiss under Fed. R. Civ. P. 9(b), 12(b)(2), 12(b)(3), and 12(b)(6) on January 7, 2013. As discussed further below, the Court DISMISSES with leave to amend Miller's complaint.
This action involves the issue of trying to find $112,750 in a 500 ton haystack.
In July 2008, Miller entered into a verbal agreement with S&S Hay through Sauer under which S&S Hay would deliver 500 tons of dry cow hay to Miller for the sum of $112,750. Miller made payment to S&S Hay, and S&S Hay delivered the hay in August 2008. Miller found that the hay S&S Hay delivered was substandard and did not conform to the terms of the agreement. S&S Hay removed the hay and resold it soon thereafter.
Miller requested a full refund from S&S Hay and Sauer. Sauer, on behalf of S&S Hay, refused and instead offered Miller "in house" credit for that amount. Sauer indicated this decision was made in conjunction with Schiff, his partner at S&S Hay, and was non-negotiable.
Miller filed suit against S&S Hay and Sauer in Kings County Superior Court alleging breach of oral contract, intentional and negligent misrepresentation, false promise, and conversion. On October 26, 2009, Miller obtained a default judgment against S&S Hay and Sauer for $112,750 plus interest accruing at the rate of 10% per annum from September 5, 2008, in addition to $750 in costs.
S&S Hay and Sauer have not paid any of the judgment, and Miller has been unable to collect on the judgment. Miller alleges that Sauer and Schiff have taken affirmative steps to prevent Miller from collecting on the judgment. Specifically, Miller alleges that S&S Hay either has let its commercial liability insurance lapse or has failed to report Miller's claim to S&S Hay's insurer. S&S Hay also has stopped doing business with California entities known to Miller to avoid potential liens. Lastly, Miller alleges that Sauer has transferred and concealed his assets.
On November 2, 2012, Miller initiated this action for violation of the UCL, Cal. Bus. and Prof. Code §§ 17200, et seq., against Defendants in this Court on the basis of diversity jurisdiction. Miller seeks restitution and compensatory damages, pre- and post-judgment interest, and costs and fees.*fn1 Defendants filed the instant motion to dismiss under Fed. R. Civ. P. 9(b), 12(b)(2), 12(b)(3), and 12(b)(6) on January 7, 2013. Miller filed an opposition on February 19, 2013, and Defendants did not file a reply.
DISCUSSION Motion to Dismiss
A.12(b)(2) Lack of Personal ...