United States District Court, S.D. California
CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY NO. 0801Q16413M13, Plaintiff,
TRANSPORT CONTINENTAL, INC., AND TRANSPORT CONTINENTAL LOGISTICS, Defendants.
ORDER: (1) DENYING DEFENDANTS' MOTION TO DISMISS;
AND (DOC. NO. 26) (2) GRANTING DEFENDANTS' UNOPPOSED
MOTION TO WITHDRAW AS COUNSEL OF RECORD (DOC. NO.
Anthony J. Battaglia United States District Judge
before the Court are two motions: Defendants Transport
Continental, Inc., and Transport Continental Logistics'
(collectively referred to as “Defendants”) motion
to dismiss and their motion to withdraw as counsel of record.
(Doc. Nos. 26, 29.) Upon review of the parties' arguments
in support and opposition of the motions, the Court finds the
motions suitable for determination on the papers and without
oral argument pursuant to Civil Local Rule 7.1.d.1.
Accordingly, the motion hearing set for June 29, 2017, at
2:00 p.m. in Courtroom 4A is vacated. As set forth more fully
below, Defendants' motion to dismiss is DENIED and their
motion to withdraw as attorney is GRANTED.
Certain Underwriters at Lloyds Subscribing to Policy No.
0801Q16413M13 (“Plaintiff”) is a group of
insurance syndicates associated with Lloyds of London, which
are citizens of the United Kingdom. (Doc. No. 1 ¶ 1.)
Specifically, Plaintiff was the first party cargo insurer of
the cargo that is the subject of this action. (Id.)
Defendants are corporations that are citizens of Texas, which
are engaged in business as motor truck carriers, bailees for
hire, and logistics providers within the United States.
(Id. ¶ 2.)
instant matter centers on the transport of a laser cutting
machine (the “Cargo”). (Id. ¶ 4.)
On or about October 30, 2014, Defendants agreed orally and in
writing to provide a transportation trailer to carry the
Cargo from Queretaro, Mexico, to Chickasha, Oklahoma.
(Id.) The contract was made in San Diego and stated
that the Cargo was to be delivered in the same condition as
when it was received. (Id.)
in breach of the foregoing contract, Defendants allegedly
delivered the Cargo to its final destination severely
damaged, with a total loss amount of $275, 000. (Id.
¶ 5.) As a result, Plaintiff was obligated to indemnify
the owner of the Cargo for the entire amount of the loss.
filed its Complaint on November 4, 2016, alleging breach of
contract, negligence, and bailment. (See generally
Doc. No. 1.) On December 12, 2016, Defendants filed a motion
to dismiss, or, in the alternative, to transfer venue, (Doc.
No. 6), which was denied on March 20, 2017. (Doc. No. 23.)
Subsequently, Defendants filed the present motion, its motion
to dismiss on April 17, 2017. (Doc. No. 26.) On May 1, 2017,
one of Defendants' counsel, Brittany Shaw, filed a motion
to withdraw as counsel of record. (Doc. No. 29.) ///
Motion to Dismiss A motion to dismiss under Rule
12(b)(6) tests the legal sufficiency of a plaintiff's
complaint and allows a court to dismiss a complaint upon a
finding that the plaintiff has failed to state a claim upon
which relief may be granted. See Navarro v. Block,
250 F.3d 729, 732 (9th Cir. 2001). “[A] court may
dismiss a complaint as a matter of law for (1) lack of a
cognizable legal theory or (2) insufficient facts under a
cognizable legal claim.” SmileCare Dental Grp. v.
Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir.
1996) (internal quotation marks and citation omitted).
However, a complaint will survive a motion to dismiss if it
contains “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In making this
determination, a court reviews the contents of the complaint,
accepting all factual allegations as true, and drawing all
reasonable inferences in favor of the nonmoving party.
Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters
of U.S., 497 F.3d 972, 975 (9th Cir. 2007).
this deference, the reviewing court need not accept
“legal conclusions” as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). It is also improper for
a court to assume “the [plaintiff] can prove facts that
[he or she] has not alleged.” Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
Motion to Withdraw as Counsel
attorney may not withdraw as counsel except by leave of
court, and the decision to grant or deny counsel's motion
to withdraw is committed to the discretion of the trial
court.” Beard v. Shuttermart of Cal., Inc.,
Case No. 07CV594 WQH (NLS), 2008 WL 410694, at *2 (S.D. Cal.
Feb. 13, 2008) (internal quotation marks and citation
omitted); see also CivLR 83.3(f)(3). “In
ruling on a motion to withdraw as counsel, courts consider:
(1) the reasons why withdrawal is sought; (2) the prejudice
withdrawal may cause to other litigants; (3) the harm
withdrawal might cause to the administration of justice; and
(4) the degree to which withdrawal will delay the resolution
of the case.” Leatt Corp. v. Innovative Safety
Tech., LLC, No. 09-CV-1301-IEG (POR), 2010 WL 444708, at
*1 (S.D. Cal. Feb. 2, 2010) (citation omitted).