Exxonmobil Oil Corporation, a New York Corporation

Filing 32

ORDER Regarding Defendants' Motion To Dismiss First Amended Complaint 24 , signed by Judge Oliver W. Wanger on 5/26/2010. ( Defendants motion to dismiss Plaintiffs claim for negligence is GRANTED with leave to amend. Plaintiff shall file an amended complaint within fifteen (15) days of entry of this Order. Defendants shall file a response within fifteen (15) days of service of the amended complaint. )(Gaumnitz, R)

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 EXXONMOBIL OIL CORPORATION, v. Plaintiff, No. 1:09-cv-01498-OWW-DLB ORDER REGARDING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT Hearing Date: May 10, 2010 Time: 10:00 a.m. Courtroom: 3 Hon. Oliver W. Wanger The motion of Defendants Nicoletti Oil, Inc., Dino J. Nicoletti and John A. Nicoletti (collectively, "Defendants") to dismiss Plaintiff ExxonMobil Oil Corporation's ("Plaintiff") First Amended Complaint under Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure came on regularly for hearing before this Court. All parties received notice and an After considering the pleadings and UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

NICOLETTI OIL, INC., et al., Defendants.

opportunity to be heard.

memoranda submitted by the parties, and all supporting papers, /// /// /// -1A/73374166.2 No. 1:09-cv-01498-OWW-DLB

[PROPOSED] ORDER REGARDING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT

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and having heard the arguments of counsel, and good cause appearing therefor, IT IS HEREBY ORDERED that: 1. Defendants' motion to dismiss Plaintiff's claim

for express contractual indemnity is GRANTED with leave to amend. The First Amended Complaint fails to allege facts

sufficient to support the notion that defendant Dino Nicoletti is personally liable under the contracts at-issue. 2. Defendants' motion to dismiss Plaintiff's express

contractual indemnity claim on the basis of the statute of limitations is DENIED. 3. Defendants' motion to dismiss Plaintiff's claim In order to

for negligence is GRANTED with leave to amend.

establish a special relationship giving rise to a duty of care, Plaintiff must allege facts which demonstrate that Defendants' had actual knowledge that their conduct would directly affect Plaintiff. allegations. The First Amended Complaint lacks the necessary The First Amended Complaint sufficiently pleads a

breach of duty. 4. Plaintiff shall file an amended complaint within

fifteen (15) days of entry of this Order. /// /// ///

-2A/73374166.2

No. 1:09-cv-01498-OWW-DLB

ORDER REGARDING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT

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DEAC_Signature-END:

5.

Defendants shall file a response within fifteen

(15) days of service of the amended complaint. IT IS SO ORDERED. Dated:

May 26, 2010

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

emm0d64h

-3A/73374166.2

No. 1:09-cv-01498-OWW-DLB

ORDER REGARDING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT