Suenos, LLC v. Goldman et al

Filing 65

ORDER denying as moot 36 Defendant Goldman's Motion to Dismiss for Lack of Jurisdiction; denying 37 LTA Defendants' Motion to Dismiss. Signed by Judge David G Campbell on 12/29/10.(DMT)

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Suenos, LLC v. Goldman et al Doc. 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Suenos, LLC, an Illinois limited liability ) ) company, ) ) Plaintiff, ) ) vs. ) ) Diane Goldman, a New Jersey ) individual, et al., ) ) Defendants. ) No. CV10-1034 PHX DGC ORDER Defendant Diane Goldman moves to dismiss the case against her on the ground that the contract between her and Plaintiff provides for mediation and arbitration. Doc. 36. Plaintiff Suenos, LLC asserts that it has opted out of arbitration, and, in the alternative, requests the case against Goldman be stayed pending mediation. Doc. 42. Defendant did not file a reply. Plaintiff and Defendant subsequently stipulated to a settlement conference as a mediation (Doc. 44) and the Court granted the motion (Doc. 47). Consequently, Defendant Goldman's motion to dismiss will be denied as moot. Defendants Gail Dacey and Lawyers Title of Arizona, Inc. (collectively "LTA Defendants") move to dismiss the claims against them under Rule 12(b)(6) for failure to state a claim. Doc. 37. The motion has been fully briefed.1 Docs. 37, 43, 53. LTA Defendants 1 LTA Defendants' request for oral argument is denied because the issues have been fully briefed and oral argument will not aid the Court's decision. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 argue that the terms of the contract between Plaintiff and Defendant Goldman more specifically the "absolute discretion," indemnity, and "hold harmless" clauses exempt them from the liability asserted in Plaintiff's claims. Doc. 37 at 1-2, 3:1-11. Moreover, Defendants argue that because the terms are unambiguous, they should be decided as a matter of law. Id. at 3; Doc. 53 at 2-3. Plaintiff responds that the contract also required the LTA Defendants to release earnest money according to the contract's terms, not arbitrarily, and that Defendants' failure to do so is the basis for the claims at issue. Doc. 43 at 7-8; Doc. 1 at 11-17. When analyzing a complaint for failure to state a claim under Rule 12(b)(6), the factual allegations "`are taken as true and construed in the light most favorable to the nonmoving party.'" Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009) (citation omitted). The terms of a contract should generally be interpreted in concert with each other, with the presumption being against surplusage. E.g., Taylor v. State Farm Mut. Auto. Ins. Co., 854 P.2d 1134, 1144 n.9 (1993) (noting that "a contract should be interpreted, if at all possible, in a way that does not render parts of it superfluous"). Plaintiff's complaint alleges, in an exhibit, that the contract contains the following provision: "In the event of a dispute between Buyer and Seller regarding any Earnest Money deposited with Escrow Company, Buyer and Seller authorize Escrow Company to release Earnest Money pursuant to the terms and conditions of this Contract in its sole and absolute discretion." Doc. 1-4 at 3. Assuming as true the allegation that these were the terms of the contract, the escrow company had discretion to release the earnest money as long as the contract terms provided for such release in the circumstances of the case. LTA Defendants assert that a release was proper under the factual circumstances of this case: Defendant Goldman (the buyer) tendered a notice of cancellation by the extended inspection-period deadline. Doc. 37 at 4. Plaintiff responds, however, that the inspection period was extended only for the limited purpose of ascertaining property tax information, that the notice was delivered later than the general-inspection period deadline, and that cancellation of the contract was not permitted for the reason stated in the notice. Doc. 43 at -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7-8; Doc. 1 at 11-13. Moreover, Plaintiff also asserts that the LTA Defendants had actual notice of these facts when they released the funds. Doc. 43 at 5; Doc. 1 at 11. The factual dispute between the parties precludes dismissal of the claims against LTA Defendants as a matter of law at this stage of the litigation. The Court will deny the motion to dismiss. IT IS ORDERED: 1. 2. Defendant Goldman's motion to dismiss (Doc. 36) is denied as moot. LTA Defendants' motion to dismiss (Doc. 37) is denied. DATED this 29th day of December, 2010. -3-

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