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Grendene USA, Inc. v. Brady

United States District Court, S.D. California

April 1, 2015

GRENDENE USA, INC., a Delaware corporation; GRENDENE S.A., a Brazil corporation, Plaintiffs,


GONZALO P. CURIEL, District Judge.

Before the Court are Plaintiff Grendene USA, Inc. and Grendene S.A.'s (collectively, "Grendene") Motion to Consolidate, (ECF No. 8), and Defendant James W. Brady and Patricia M. Brady's (collectively, the "Bradys") Motion to Dismiss, (ECF No. 9). The parties have fully briefed the motions. (ECF Nos. 8, 9, 14, 17, 18, 20.) The Court finds the motions suitable for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1). Upon review of the moving papers, admissible evidence, and applicable law, the Court DENIES Grendene's Motion to Consolidate and DENIES the Bradys' Motion to Dismiss.


On March 9, 2012, the Bradys filed a complaint against Grendene alleging trademark infringement (the "Trademark Action"). Complaint, Brady v. Grendene USA, Inc., No. 3:12-cv-0604-GPC-KSC (S.D. Cal. Mar. 9, 2012), ECF No. 1. On September 27, 2013, Grendene filed an answer in the Trademark Action. Answer, Brady v. Grendene USA, Inc., No. 3:12-cv-0604-GPC-KSC (S.D. Cal. Sept. 3, 2013), ECF No. 56. On May 30, 2014, Grendene filed a motion for summary judgment in the Trademark Action arguing that a February 16, 1995, settlement agreement between Made in Brazil, Inc., the Bradys' company, and the Ipanema Show Corporation ("ISC") (the "Settlement Agreement") bars the Bradys' trademark infringement causes of action because Grendene has succeeded to ISC's rights in the Settlement Agreement. Motion for Summary Judgment, Brady v. Grendene USA, Inc., No. 3:12-cv-0604-GPC-KSC (S.D. Cal. May 30, 2014), ECF No. 72.

On December 15, 2014, Grendene filed a complaint against the Bradys alleging a breach of the Settlement Agreement. (ECF No. 1.) On January 6, 2015, Grendene filed a motion to consolidate this action with the Trademark Action. (ECF No. 8.) On February 27, 2015, the Bradys filed an opposition to Grendene's motion to consolidate. (ECF No. 14.) On March 13, 2015, Grendene replied to the Bradys' opposition. (ECF No. 20.)

On February 2, 2015, the Bradys filed a motion to dismiss this action. (ECF No. 9.) On February 27, 2015, Grendene filed an opposition to the Bradys' motion to dismiss. (ECF No. 17.) On March 13, 2015, the Bradys replied to Grendene's opposition. (ECF No. 18.)

In its complaint in this action, Grendene alleges that: (1) it is a successor to the Settlement Agreement, and (2) the Bradys have breached that agreement's covenant not to sue by filing the Trademark Action. (ECF No. 1 ¶¶ 16, 21, 28.) Based on that breach, Grendene seeks damages for "attorneys' fees, costs and expenses." ( Id. ¶ 35.)


A. Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534.

While a plaintiff need not give "detailed factual allegations, " a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). "To survive a motion to dismiss, a complaint must 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) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, "the non-conclusory 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 Service, 572 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

B. Motion to Consolidate

Federal Rule of Civil Procedure 42(a) grants the Court broad discretion to consolidate separate actions. Investors Research Co. v. U.S. Dist. Court for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989). Under Rule 42(a), the Court may consolidate actions that involve common questions of law or fact. FED. R. CIV. P. 42(a). The Court should also consider weigh any time and effort saved by consolidation against any "inconvenience, ...

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