Exxonmobil Oil Corporation, a New York Corporation

Filing 52

ORDER re Defendants' Motion to Dismiss Exxonmobil's Second Amended Complaint, signed by Judge Oliver W. Wanger on 10/1/2010. (Kusamura, W)

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 The motion of Defendants Nicoletti Oil, Inc., Dino J. Nicoletti and John A. Nicoletti (collectively, "Defendants") to dismiss Plaintiff ExxonMobil Oil Corporation's ("ExxonMobil") second 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 EXXONMOBIL OIL CORPORATION, v. Plaintiff, No. 1:09-cv-01498-OWW-DLB ORDER RE DEFENDANTS' MOTION TO DISMISS EXXONMOBIL'S SECOND AMENDED COMPLAINT Hearing Date: Sept. 13, 2010 Time: 10:00 a.m. Courtroom: 3 Hon. Oliver W. Wanger 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, and having heard the arguments of counsel, and good cause appearing therefor, IT IS HEREBY ORDERED that: -1A/73482601.2 No. 1:09-cv-01498-OWW-DLB

[PROPOSED] ORDER RE DEFENDANTS' MOTION TO DISMISS EXXONMOBIL'S SECOND AMENDED COMPLAINT

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1.

Defendants' motion to dismiss ExxonMobil's

express contractual indemnity claim under Rule 12(b)(6) is DENIED as to the Wholesale Distributor Agreement for Motor Fuels dated May 6, 1985 (the "1985 Agreement) and the Wholesale Distributor Agreement for Lubricants, Distillates and other NonMotor Fuels dated March 1, 1989 (the "1989 Agreement), and is GRANTED with leave to amend as to all other contract claims. When ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept as true all well-pleaded factual allegations in the complaint. See Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. A complaint will survive a Rule 12(b)(6)

1937, 1950 (2009).

motion if it pleads "enough facts to state a claim to relief that is plausible on its face." 544, 570 (2007). Bell Atl. v. Twombly, 550 U.S.

Here, the second amended complaint alleges

facts sufficient to support a claim for express contractual indemnity against Nicoletti Oil, Inc. as to the 1985 Agreement and the 1989 Agreement. However, to the extent ExxonMobil seeks

to assert claims for breach of contracts other than the 1985 Agreement and the 1989 Agreement, ExxonMobil must list such contracts in the complaint. 2. Defendants' motion to dismiss ExxonMobil's The second

negligence claim under Rule 12(b)(6) is DENIED.

amended complaint properly pleads a claim for negligence based on the special relationship between ExxonMobil and Nicoletti Oil, Inc. as co-ordered dischargers under the 2005 and 2006 Cleanup and Abatement Orders. 24 Cal. 3d 799, 804 (1979). See J'Aire Corp. v. Gregory,

This special relationship imposes a -2No. 1:09-cv-01498-OWW-DLB

ORDER RE DEFENDANTS' MOTION TO DISMISS EXXONMOBIL'S SECOND AMENDED COMPLAINT

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A/73482601.2

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duty on Defendants to exercise ordinary care in the avoidance of economic injury to ExxonMobil. See Ott v. Alfa-Laval Agri, The second amended

Inc., 31 Cal. App. 4th 1439, 1448-49 (1995).

complaint also sufficiently alleges that Defendants breached the duty entailed by the special relationship and that ExxonMobil was injured as a result of Defendants' breach. 3. ExxonMobil shall file an amended complaint within

fifteen (15) days of entry of this Order. 4. Defendants shall file a response within fifteen

(15) days of service of the amended complaint. IT IS SO ORDERED. Dated: October 1, 2010 /s/ OLIVER W. WANGER_______ UNITED STATES DISTRICT JUDGE

-3A/73482601.2

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

ORDER RE DEFENDANTS' MOTION TO DISMISS EXXONMOBIL'S SECOND AMENDED COMPLAINT

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