United States District Court, E.D. California
HELLENIC PETROLEUM LLC, a Florida limited liability company, Plaintiff,
ELBOW RIVER MARKETING LTD., a Corporation of the Province of Alberta, Canada, and DOES 1 through 20, Defendants.
MEMORANDUM DECISION AND ORDER ON DEFENDANT'S
MOTION TO DISMISS ON THE BASES OF FORUM NON CONVENIENS AND
RULE 12(B)(6). (ECF NO. 15)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
case arises out of a transaction in which Plaintiff Hellenic
Petroleum LLC (“Hellenic Petroleum” or
“Plaintiff”), a U.S. company whose principal
place of business is in Florida, purchased propane from Elbow
River Marketing LTD (“Elbow River”), a Canadian
company whose principal place of business is in Alberta,
Canada. ECF No. 1 ¶¶ 1-2. After this action was
filed in April 2019, Elbow River filed its first motion to
dismiss under Federal Rule of Civil Procedure 12(b)(3),
arguing that the Alberta courts in Canada had exclusive
jurisdiction over this case based on a forum-selection
clause. Doubting that the motion to dismiss was brought under
the correct principles of law given that an international
sales contract was at issue in this case, the Court, on July
11, 2019, denied the motion without prejudice and instructed
Elbow River to brief the Court further on the applicability
of the United Nations Convention on Contracts for the
Internal Sale of Goods (“CISG”) and Atl.
Marine Const. Co. v. U.S. Dist. Court for W. Dist. of
Texas, 571 U.S. 49 (2013) in a subsequent motion to
dismiss. ECF No. 1 at 1-3.
Elbow River filed a second Motion to Dismiss on July 25, 2019
to address those issues raised by the Court. ECF No. 15.
Elbow River now asks the Court to dismiss this action under
the doctrine of forum non conveniens pursuant to the
forum-selection clause in the parties' agreements or, in
the alternative, to dismiss all five causes of action for
failure to allege sufficient facts under Federal Rule of
Civil Procedure 12(b)(6). Hellenic Petroleum then filed its
Opposition on August 29, 2019, followed by Elbow River's
Reply on September 5, 2019. ECF Nos. 17-19.
to Local Rule 230(g), the Court finds this matter suitable
for a decision on the papers. For the reasons stated below,
the Court needs further briefing from the parties before it
can determine whether to grant Hellenic Petroleum leave to
amend its first cause of action for breach of oral contract.
following facts are drawn from the Complaint, and are
accepted as true only for the purposes of this Motion to
Dismiss. Cousins v. Lockyer, 568 F.3d 1063, 1067
(9th Cir. 2009). The parties made an oral agreement in or
around October 2018 to limit Elbow River's delivery of
propane on Hellenic Petroleum's account to a monetary
value not exceeding $1 million. ECF No. 1 ¶¶ 10,
14. Elbow River breached this oral agreement by delivering
$2.2 million in propane to Hellenic Petroleum without its
consent or knowledge. Id. ¶ 11. As a result,
Hellenic Petroleum asserts the first cause of action for
breach of oral contract against Elbow River and the second
cause of action for declaratory relief asking the Court to
adjudicate the parties' rights and obligations under the
oral agreement. Id. ¶¶ 8-15.
Petroleum also asserts a third, fourth, and fifth causes of
action for trade libel, negligent interference with the
prospective economic relations, and violation of the
California Business & Professions Code §§
17200, et seq.
motion to dismiss under Rule 12(b)(6) challenges the legal
sufficiency of the opposing party's pleadings. Dismissal
of an action under Rule 12(b)(6) is proper where there is
either a “lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal
theory.” Balistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1990). When considering a motion
to dismiss for failure to state a claim under Rule 12(b)(6),
all allegations of material fact must be accepted as true and
construed in the light most favorable to the pleading party.
Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38
(9th Cir. 1996). The inquiry is generally limited to the
allegations made in the complaint. Lazy Y Ranch LTD v.
Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
overcome a Rule 12(b)(6) challenge, the complaint must allege
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. A claim is plausible on its face when “the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A plausible claim is
one which provides more than “a sheer possibility that
a defendant has acted unlawfully.” Id. A claim
which is possible, but which is not supported by enough facts
to “nudge [it] across the line from conceivable to
plausible . . . must be dismissed.” Twombly,
550 U.S. at 570.
Atlantic Marine, the Supreme Court addressed the
procedures available to a civil defendant seeking to enforce
a valid forum-selection clause. The Supreme Court held that
‘the appropriate way to enforce a forum-selection
clause pointing to a state or foreign forum is through the
doctrine of forum non conveniens.'”
Gemini Techs., Inc. v. Smith & Wesson Corp., 931
F.3d 911, 913 (9th Cir. 2019) (citing to Atl. Marine
Const. Co. v. U.S. Dist. Court for W. Dist. of Texas,
571 U.S. 49, 61, 134 S.Ct. 568 (2013)). Pursuant to
Atlantic Marine, Elbow River now invokes the
forum non conveniens doctrine and submits evidence
of the parties' written agreements concerning the sales
of the propane to show that there is a forum-selection clause
in the agreements requiring Hellenic Petroleum to submit to
the jurisdiction and law of Alberta, Canada. ECF No. 15 at
10-17; ECF No. 16 ¶¶ 11-13 (citing to Exhs. 1-5).
Elbow River thus asks the Court to dismiss this action
pursuant to the forum-selection clause. ECF No. 15 at 10-17.
In opposition, Hellenic Petroleum contends that it is not
pleading a breach of contract based on the written
agreements; rather, its first cause of action is based on a
breach of an independent oral agreement, which does not
contain a forum-selection clause. ECF No. 17 at 1. Given
Hellenic Petroleum's argument, the Court must first
consider the sufficiency of Hellenic Petroleum's
allegations under Rule 12(b)(6) as to the existence of an
independent oral contract. If Hellenic Petroleum sufficiently
alleges a breach of an independent oral agreement, then the
forum-selection clause in the written agreements does not
apply here. The Court begins its analysis of the oral
contract under the CISG.
CISG is an international treaty that governs the formation of
international sales contracts as well as the rights and
obligations of the parties.' The CISG applies to
‘contracts of sale of goods between parties whose
places of business are in different States . . . when the
States are Contracting States.'” Martini E
Ricci Iamino S.P.A.--Consortile Societa Agricola v. Trinity
Fruit Sales Co., 30 F.Supp.3d 954, 965 (E.D. Cal. 2014)
(citations omitted). Hellenic Petroleum and Elbow River are
incorporated in the United States and Canada, respectively,
ECF No. 1 ¶¶ 1-2, and both nations are signatories
to the CISG, Chateau des Charmes Wines Ltd. v. Sabate USA
Inc., 328 F.3d 528, 530 (9th Cir. 2003) (citing to 15
U.S.C. App.). Thus, the ...