Tomek v. Apple, Inc.

Filing 35

MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr on 7/10/12. Defendants' 29 Motion to Dismiss is GRANTED with leave to amend. Amended Complaint due within 20 days. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALEX TOMEK,

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No. 2:11-cv-02700-MCE-DAD

Plaintiff,
v.

MEMORANDUM AND ORDER

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APPLE, INC.,
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Defendant.
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----oo0oo----

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Plaintiff Alex Tomek (“Plaintiff”) initiated this action

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against Defendant Apple, Inc. (“Defendant”) alleging state law

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violations arising primarily out of Plaintiff’s claim that a

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computer he purchased from Defendant was defective.

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before the Court is Defendant’s Motion to Dismiss Plaintiff’s

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First Amended Complaint (“FAC”).

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Defendant’s Motion to Dismiss is GRANTED with leave to amend.1

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Presently

For the following reasons,

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Because oral argument will not be of material assistance,
the Court ordered this matter submitted on the briefing. E.D.
Cal. Local Rule 230(g).
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BACKGROUND2

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Plaintiff alleges that on February 15, 2011, Defendant

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unveiled the 2011 MacBook Pro (“MacBook”), a computer Defendant

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purportedly touted as generating “huge leaps in performance.”

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According to Plaintiff, Defendant promised, among other things,

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that:

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[The MacBook Pros] run applications up to twice as fast
as their top-of-the-line predecessors.

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They perform up to twice as fast as the previous
generation, breezing through demanding tasks like
editing HD video.

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Say you’re using a processor-intensive application like
Aperture 3 or Final Cut Pro that benefits from extra
power...By shifting core frequency in smaller
increments than before, it allows the processor to
manage performance without sacrificing efficiency. All
this takes place behind the scenes, so your work just
goes smoother and faster.

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Even with faster processors and graphics, the new
MacBook Pro lasts an amazing 7 hours on a single
charge.

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[Y]ou can expect to surf the web wirelessly for up to 7
hours on a single charge. Or take your entire creative
studio on the road for live performances or a location
shoot.

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FAC, ¶¶ 6, 7, 9.

The above statements are accompanied by the

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caveat, however, that “[b]attery life and charge cycles vary by

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use and settings.”

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Exhs. A, B.3

Declaration of Alexei Klestoff, ¶¶ 2-3,

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The following facts are derived, at times verbatim, from
Plaintiff’s Complaint.
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These additional statements,
are the proper subjects of judicial
Tunnell, 14 F.3d 449, 454 (9th Cir.
contents are alleged in a complaint
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though not quoted in the FAC,
notice. See Branch v.
1994) (“[D]ocuments whose
and whose authenticity no

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Plaintiff purchased a MacBook on February 28, 2011, just

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shortly after its release.

After purchasing his new computer,

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Plaintiff found that the product’s battery was not charging under

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certain conditions, such as when the computer was fully utilizing

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processors meant for streaming movies, playing video games or

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editing video.

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reported to Defendant in July of 2011, that his battery was

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draining power even when the machine was plugged into an external

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power source via the AC adapter.

More specifically, Plaintiff discovered, and

Plaintiff further contends

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that, in approximately August of 2011, his power adapter failed

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to supply sufficient power to the MacBook so much so that the

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computer’s battery drained to zero, causing the machine to shut

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down.

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battery and had to re-copy media on a video editing job he was

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performing.

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experienced a similar situation where their MacBooks stopped

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functioning properly, or at all for that matter, and that the

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machines’ battery cycle counts may be caused to increase under

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the above conditions.

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Plaintiff then had to spend twenty minutes recharging his

Plaintiff believes other consumers may have

According to Plaintiff, when Defendant has been notified

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that the MacBook battery may drain even when the system is

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plugged in, Defendant’s customer service representatives have

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advised customers that this is how the MacBook is designed and

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that there is no resolution for the issue.

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party questions, but which are not physically attached to the
pleading, may be considered in ruling on a Rule 12(b)(6) motion
to dismiss.”); see also Berenblat v. Apple Inc., 2009 WL 2591366,
*2 n.3 (N.D. Cal.); Hoey v. Sony Elecs., Inc., 515 F. Supp. 2d
1099, 1103 (N.D. Cal.).
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Indeed, when Plaintiff himself contacted Defendant, as mentioned

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above, Plaintiff was transferred to a Senior Engineer Support

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Representative, who advised Plaintiff, via what Plaintiff

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believes was a scripted response, that “[t]his battery issue was

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expected behavior” and Defendant “[did] not have a fix.”

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Consequently, on September 9, 2011, Plaintiff initiated this

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action against Defendant in state court.

Defendant subsequently

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removed the case to this Court, after which Plaintiff filed his

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FAC, alleging causes of action for: 1) Products Liability -

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Negligence; 2) Products Liability - Defect in Design,

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Manufacture, and Assembly; 3) Products Liability - Breach of

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Express and Implied Warranty; 4) Intentional Misrepresentation;

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5) Negligent Misrepresentation; 6) Fraud and Concealment;

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7) Violation of California’s Unfair Competition Law, California

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Business & Professions Code § 17200 (“UCL”); 8) Violation of

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California’s Consumers Legal Remedies Act, California Civil Code

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§§ 1750, et seq. (“CLRA”); and 9) Money Had and Received.

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March 26, 2012, Defendant moved to dismiss Plaintiff’s FAC.

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the following reasons, Defendant’s Motion is GRANTED with leave

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to amend.

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On
For

STANDARD

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On a motion to dismiss for failure to state a claim under

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Federal Rule of Civil Procedure 12(b)(6),4 all allegations of

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material fact must be accepted as true and construed in the light

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most favorable to the nonmoving party.

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Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

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“requires only ‘a short and plain statement of the claim showing

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that the pleader is entitled to relief,’ in order to ‘give the

Cahill v. Liberty Mut.
Rule 8(a)(2)

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defendant fair notice of what the...claim is and the grounds upon

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which it rests.’”

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(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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complaint attacked by a Rule 12(b)(6) motion to dismiss does not

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require detailed factual allegations.

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plaintiff’s obligation to provide the grounds of his entitlement

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to relief requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will

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not do.”

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court is not required to accept as true a “legal conclusion

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couched as a factual allegation.”

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662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

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also is not required “to accept as true allegations that are

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merely conclusory, unwarranted deductions of fact, or

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unreasonable inferences.”

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536 F.3d 1049, 1055 (9th Cir. 2008) (internal citations and

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quotations omitted).

Id.

Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555

Id.

A

However, “a

(internal citations and quotations omitted).

Ashcroft v. Iqbal, 556 U.S.
The Court

In re Gilead Sciences Sec. Litig.,

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4

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A

All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
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“Factual allegations must be enough to raise a right to relief

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above the speculative level.”

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Twombly, 550 U.S. at 555.

Furthermore, “Rule 8(a)(2)...requires a ‘showing,’ rather

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than a blanket assertion, of entitlement to relief.”

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550 U.S. at 556 n.3 (internal citations and quotations omitted).

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“Without some factual allegation in the complaint, it is hard to

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see how a claimant could satisfy the requirements of providing

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not only ‘fair notice’ of the nature of the claim, but also

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‘grounds’ on which the claim rests.”

Id.

Twombly,

(citation omitted).

A

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pleading must contain “only enough facts to state a claim to

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relief that is plausible on its face.”

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“plaintiffs...have not nudged their claims across the line from

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conceivable to plausible, their complaint must be dismissed.”

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Id.

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strikes a savvy judge that actual proof of those facts is

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improbable, and ‘that a recovery is very remote and unlikely.’”

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Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

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Id. at 570.

If the

However, “a well-pleaded complaint may proceed even if it

Under Rule 9(b), however, a party alleging fraud or

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intentional misrepresentation must satisfy a heightened pleading

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standard by stating with particularity the circumstances

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constituting fraud.

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“[a]verments of fraud must be accompanied by ‘the who, what,

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when, where, and how’ of the misconduct charged.”

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Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting

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Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).

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“a plaintiff must set forth more than the neutral facts necessary

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to identify the transaction.

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is false or misleading about a statement, and why it is false.”

Fed. R. Civ. P. 9(b).

Specifically,

Vess v. Ciba-

Further,

The plaintiff must set forth what

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Id. (quoting Decker v. GlenFed, Inc., 42 F.3d 1541, 1548

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(9th Cir. 1994).

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A court granting a motion to dismiss a complaint must then

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decide whether to grant a leave to amend.

Leave to amend should

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be “freely given” where there is no “undue delay, bad faith or

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dilatory motive on the part of the movant,...undue prejudice to

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the opposing party by virtue of allowance of the amendment, [or]

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futility of the amendment....”

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(1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,

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1052 (9th Cir. 2003) (listing the Foman factors as those to be

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considered when deciding whether to grant leave to amend).

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Dismissal without leave to amend is proper only if it is clear

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that “the complaint could not be saved by any amendment.”

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Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1056

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(9th Cir. 2007) (internal citations and quotations omitted).

Foman v. Davis, 371 U.S. 178, 182

Intri-

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ANALYSIS

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A.

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Defendant’s Motion to Dismiss Plaintiff’s
Misrepresentation, Fraudulent Concealment, UCL and CLRA
claims.

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Defendant moves to dismiss Plaintiff’s fourth through eighth

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causes of action on the basis that Plaintiff has failed to

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adequately plead actionable misrepresentations or omissions.

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These fraud-based causes of action are subject to review pursuant

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to Rule 9(b)’s heightened pleading standard.

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See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party

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must state with particularity the circumstances constituting

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fraud or mistake.”); Kearns v. Ford Motor Co., 567 F.3d 1120,

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1124-25 (9th Cir. 2009) (applying Rule 9(b) to CLRA and UCL

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claims predicated on alleged misrepresentations).

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given this heightened standard of review, Plaintiff’s instant

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claims fail.

Especially

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1.

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Plaintiff’s Common Law Claims.

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Defendant first moves to dismiss Plaintiff’s common law

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claims for intentional and negligent misrepresentation and for

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fraud and concealment.

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intentional misrepresentation under California law, a Plaintiff

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must allege: (1) misrepresentation (false representation,

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concealment, or nondisclosure); (2) knowledge of falsity (or

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scienter); (3) intent to defraud, i.e., to induce reliance;

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(4) justifiable reliance; and (5) resulting damage.”

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Apple, Inc., 2011 WL 588209, *3 (N.D. Cal.) (“Baltazar I”).

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same elements comprise a cause of action for negligent

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misrepresentation, except there is no requirement of intent to

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induce reliance.”

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125 Cal. App. 4th 513, 519 (2004).

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misrepresentation claim, Plaintiff must nonetheless allege he

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actually relied upon Defendant’s purported misrepresentations.

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Id.

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“To state a claim for fraud or

Baltazar v.
“The

Cadlo v. Owens-Illinois, Inc.,
In stating a negligent

“Thus, the mere assertion of ‘reliance’ is insufficient.

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The plaintiff must allege the specifics of his or her reliance on

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the misrepresentation to show a bona fide claim of actual

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reliance.”

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concealment claim, Plaintiff “must allege specifically a

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representation actually made by the defendant that is contrary to

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the omission, or an omission of a fact that the defendant was

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obliged to disclose.”

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*5 (N.D. Cal.) (“Baltazar II”) (citing Daughtery v. American

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Honda Motor Co., 144 Cal. App. 4th 824, 835 (2006)).

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Id.

Similarly, to state an actionable omission or

Baltazar v. Apple, Inc., 2011 WL 3795013,

The crux of each of Plaintiff’s fraud-based claims is that

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Defendant misrepresented or concealed the fact that, under

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certain conditions, even if the MacBook is plugged in, the AC

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adapter does not charge the battery, and the computer thus

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simultaneously uses power from both the adapter and its internal

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power source.

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Defendant made any affirmative representation to the contrary.

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Moreover, the FAC also lacks any other affirmative allegations

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Plaintiff plausibly claims were false.

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Nowhere in the FAC, however, is it alleged that

For example as to the latter point, all of Plaintiff’s

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complaints regarding Defendant’s battery-related promises fail

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because Defendant expressly disclosed that “[b]attery life and

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charge cycles vary by use and settings.”

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A, B; Maloney v. Verizon Internet Servs., Inc., 413 F. App’x 997,

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999-1000 (9th Cir. 2011) (finding that a “reasonable consumer

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would not have been deceived by statements, which included the

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qualifier ‘up to’ (meaning the same or less than) and an

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explanation that each consumer’s maximum speed would vary

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depending on several...factors.”).
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Klestoff Decl., Exhs.

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Given Defendant’s disclaimer regarding battery life, Plaintiff

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has also failed to allege he relied on any alleged battery-

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related misrepresentation or omission.

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Perhaps realizing the weakness inherent in his FAC,

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Plaintiff argues in Opposition primarily that a number of

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Defendant’s marketing statements going to the MacBook’s

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performance speed and capabilities are rendered false because the

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MacBook does not perform at all if it shuts down when its battery

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is drained.

The problem with this argument is that the

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statements Plaintiff relies upon in support of his claims are

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either not alleged to be false themselves or are comprised merely

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of puffery.

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advertised the MacBook performance was “up to twice as fast as

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the previous generation, breezing through demanding tasks like

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editing HD video” and that “with up to 1 GB of dedicated CDDR5

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video memory, these processors provide up to 3x faster

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performance than the previous generation.”

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Nowhere in the FAC, however, does Plaintiff allege that the

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MacBook is not in fact “up to twice as fast as the previous

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generation” or that the processors do not “provide up to 3x

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faster performance,” even assuming the computer shuts down under

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the unique circumstances Plaintiff alleges.

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remaining allegations, which go to such statements by Defendant

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that the MacBook is a “breakthrough, through and through” and

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that it provides for “huge leaps in performance” are puffery and

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cannot provide a basis for Plaintiff’s instant claims.

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For example, Plaintiff alleges that Defendant

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FAC, ¶¶, 6, 25.

Plaintiff’s

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See Anunziato v. eMachines, Inc., 402 F. Supp. 2d 1133, (C.D.

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Cal. 2005) (“Generalized, vague, and unspecified assertions

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constitute ‘mere puffery’ upon which a reasonable consumer could

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not rely.”) (citing Glen Holly Entertainment, Inc. v. Tektronix

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Inc., 343 F.3d 1000, 1015 (9th Cir. 2003)).

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Ultimately, Plaintiff’s claims fail as pled because he never

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alleges that Defendant promised the MacBook would operate other

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than as it did, nor does Plaintiff allege with sufficient

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particularity that Defendant had a duty to disclose any

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purportedly concealed fact (e.g., that, under certain conditions,

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if the battery power is low enough, the MacBook may shut down

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even if plugged in via an AC Adapter).

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3795013, *5 (no claim for fraudulent omission when Defendant’s

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advertisements depicted iPad being used outdoors but the product

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allegedly would not function without interruption under all

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external conditions).

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plead Defendant actually concealed any purported defect from

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Plaintiff at the time he purchased his MacBook or that Plaintiff

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would not have purchased the product absent any misrepresentation

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or omission.

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(N.D. Cal.) (general allegations regarding concealment

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insufficient).

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Plaintiff’s fraud and concealment claim is GRANTED with leave to

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amend.

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See Baltazar II, 2011 WL

Plaintiff likewise fails to adequately

See Hovespian v. Apple, Inc., 2009 WL 259*1445, *3

Accordingly, Defendant’s Motion to Dismiss

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1

2.

Plaintiff’s Statutory Claims.

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Plaintiff’s statutory claims, each of which, as pled, is

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wholly dependent on the viability of Plaintiff’s

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misrepresentation and concealment claims, fail for the same

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reason as did their common law claims.

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actionable “any unlawful, unfair or fraudulent business act.”

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Cal. Bus & Prof. Code § 17200.

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any or all of the three prongs of the UCL-unlawful, unfair, or

California’s UCL makes

“An act can be alleged to violate

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fraudulent.”

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152 Cal. App. 4th 1544, 1554 (2007).

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out of the “unlawful” prong “borrow[] violations of other laws

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and treat[] them as unlawful practices that the unfair

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competition law makes independently actionable.”

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Communications, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.

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4th 163, 180 (1999).

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practices may be grounded upon a violation of a statute or be a

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standalone claim based on an alleged act that violates

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established public policy or if it is immoral, unethical,

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oppressive, or unscrupulous and causes injury to consumers which

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outweighs its benefits.”

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(internal citations and quotations omitted).

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the fraud prong may be brought based upon conduct akin to common-

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law fraud or an alleged course of conduct that is likely to

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deceive the public.”

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Berryman v. Merit Prop. Mgmt., Inc.,
Causes of action arising

Cal-Tech

“A UCL claim predicated on unfair business

Hovsepian, 2009 WL 5069144, *4
“A claim based upon

Id.

For its part, the CLRA prohibits “unfair methods of

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competition and unfair or deceptive acts or practices.”

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Civ. Code § 1770.
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Cal.

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“The CLRA proscribes both active misrepresentations about the

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standard, quality, or grade of goods, as well as active

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concealment related to the characteristics or quality of goods

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that are contrary to what has been represented about the goods.”

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Morgan v. Harmonix Music Sys., Inc., 2009 WL 2031765, *3 (N.D.

6

Cal.).

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As already discussed above, Plaintiff has failed to plead

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the existence of any actionable misrepresentation or omission,

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let alone a violation of a law or other unfair or fraudulent

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practice, capable of supporting a cause of action for violation

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of either the UCL or the CLRA.

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588209, *4-5 (failure to adequately allege misrepresentation,

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omission or other wrongdoing fatal to UCL and CLRA claims);

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Berenblat v. Apple, 2009 WL 2591366, *5 (N.D. Cal.) (failure to

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disclose defect in product that nonetheless performs as warranted

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during the warranty period does not provide basis for UCL

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violation).

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Plaintiff’s statutory claims is GRANTED with leave to amend.

See, e.g., Baltazar I, 2011 WL

Accordingly, Defendant’s Motion to Dismiss

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B.

Defendant’s Motion to Dismiss Plaintiff’s Breach of
Warranty claims.

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Defendant also moves to dismiss both Plaintiff’s Breach of

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Express Warranty and his Breach of Implied Warranty of

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Merchantability causes of action.5

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By way of his Opposition, Plaintiff appears to abandon any
argument he might have had that he has stated a claim for the
Breach of the Implied Warranty of Fitness for a Particular
Purpose. See Cal. Civ. Code § 1792.1. Given Plaintiff’s
apparent admission that he does not state such a claim, the Court
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Defendant’s Motion is well-taken, and each of Plaintiff’s breach

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of warranty causes of action is dismissed with leave to amend.

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First, “[t]o plead an action for breach of express warranty

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under California law, a plaintiff must allege: (1) the exact

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terms of the warranty; (2) reasonable reliance thereon; and (3) a

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breach of warranty which proximately caused plaintiff’s injury.”

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Baltazar I, 2011 WL 588209, *2 (citing Williams v. Beechnut

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Nutrition Corp., 185 Cal. App. 3d 135, 142 (1986)).

9

also must plead that he or she provided the defendant with

10

pre-suit notice of the breach.”

11

“A plaintiff

§ 2607).

12

Id. (citing Cal. Commercial Code

The FAC contains no detail regarding the exact terms of any

13

express warranty breached under the facts of this case.

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According to Plaintiff in his Opposition, the express warranties

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provided to him by Defendant were violated when his MacBook

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battery was completely drained, even while connected to an

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external power source, such that the machine shut down

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completely. Plaintiff thus claims that the machine is defective,

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and that express warranties have been breached, because his

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MacBook ceased to operate at all.

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however, because he does not allege he provided Defendant with

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the requisite pre-suit notice of the purported shutdown issue.

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To the contrary, while Plaintiff contacted Defendant regarding

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the MacBook’s simultaneous use of power from both the battery and

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the AC adapter in July of 2011, he does not allege his computer

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shut down until the following month.

Plaintiff’s claim fails,

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now construes the FAC as not bringing such a cause of action and
denies Defendant’s Motion as to this claim as moot.
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1

Accordingly, Plaintiff’s Breach of Express Warranty cause of

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action fails and Defendant’s Motion is GRANTED with leave to

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amend as to this cause of action.

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Plaintiff’s Breach of Implied Warranty of Merchantability

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claim fares no better.

Pursuant to California law, “every sale

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of consumer goods that are sold at retail in [California] shall

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be accompanied by the manufacturer’s and the retail seller’s

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implied warranty that the goods be merchantable.”

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§ 1792.

Cal. Civ. Code

“Goods in conformity with the implied warranty of

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merchantability: (1) Pass without objection in the trade under

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the contract description; (2) Are fit for the ordinary purposes

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for which such goods are used; (3) Are adequately contained,

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packaged, and labeled; and (4)Conform to the promises or

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affirmations of fact made on the container or label.”

15

Baltazar I, 2011 WL 588209 *2 (quoting Cal. Civ. Code

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§ 1791.1(a)) (internal quotations and alternations omitted).

17

“The implied warranty of merchantability does not ‘impose a

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general requirement that goods precisely fulfill the expectation

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of the buyer.

20

quality.’”

21

Motor Corp. v. Super. Ct., 37 Cal. App. 4th 1291, 1295 (1995)).

22

Instead, it provides for a minimum level of

Berenblat, 2009 WL 2591366, *3 (quoting Am. Suzuki

Defendant correctly argues in its Motion that Plaintiff

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fails to allege the MacBook is not fit for ordinary use.

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and foremost, Plaintiff has failed to sufficiently identify what

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functions comprise the “ordinary purpose” of the MacBook.

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First

1

In response, Plaintiff argues that Defendant breached the implied

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warranty because, if the battery drains to the point where the

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system shuts down, the computer cannot be used at all, rendering

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it unfit for any use, let alone ordinary use.

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Plaintiff’s allegations that, under unique circumstances, namely

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“heavy loads” undertaken when the battery is already low, the

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MacBook may shut down, and that his computer shut down once over

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the course of a six month period, are insufficient as a matter of

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law to state a claim that the MacBook is not fit for ordinary

However,

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use.

See Baltazar II, 2011 WL 3795013, *3-4 (N.D. Cal.).

11

Defendant’s Motion to Dismiss Plaintiff’s Breach of the Implied

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Warranty of Merchantability is thus GRANTED with leave to amend.

13
C.

14

Defendant’s Motion to Dismiss Plaintiff’s Negligence
and Defective Design, Manufacture and Assembly claims.

15
16

Defendant next moves to dismiss Plaintiff’s negligence-based

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causes of action as barred by the economic loss rule.

See

18

Sacramento Regional Transit Dist. v. Grumman Flxible, 158 Cal.

19

App. 3d 289, *293 (1984) (“[W]here damage consists solely of

20

‘economic losses,’ recovery on a theory of products liability is

21

precluded.”).

22

‘damages for inadequate value, costs or repair and replacement of

23

the defective product or consequent loss of profits - without any

24

claim of personal injury or damages to other property.”

25

294 (internal citations and quotations omitted).

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“Economic loss or harm has been defined as

16

Id. at

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Accordingly, because Plaintiff fails to allege any physical

2

injury to property or person apart from the “manifestation of the

3

defect itself,” Defendant argues Plaintiff’s first two causes of

4

action must be dismissed.

5

Id.

Plaintiff attempts to salvage these causes of action by

6

arguing that the MacBook’s defect causes damage to its battery,

7

which it views as “other property.”

8

Plaintiff’s allegation for purposes of this Motion, his argument

9

nevertheless must be rejected because, as alleged in the FAC, the

Assuming the truth of

10

battery is an integrated component of the MacBook and is not

11

alleged to be a separate component of property damaged by the

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“defective” computer itself.

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29 Cal. 4th 473, 487 (2002) (Kennard, J., concurring);

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McKinney v. Google, Inc., 2011 WL 3862120, *8 (N.D. Cal.).

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Defendant’s Motion is thus GRANTED with leave to amend.

See Jimenez v. Superior Court,

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D.

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Defendant’s Motion to Dismiss Plaintiff’s Money Had and
Received claim.

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19

Finally, Defendant argues Plaintiff’s Money Had and Received

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cause of action fails because Plaintiff failed to plead that

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Defendant is indebted to him for a sum certain.

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law action of general assumpsit, plaintiffs customarily plead an

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indebtedness using ‘common counts.’”

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WL 1490819, *5 (E.D. Cal.).

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common count are (1) a statement of indebtedness in a ‘certain

26

sum’; (2) the consideration, i.e., goods sold, work done, etc.’

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and (3) nonpayment.”

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///

“In the common

Johnson v. GMRI, Inc., 2007

“The essential allegations of a

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1

Id.

Indeed, “[a] cause of action for money had and received is

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stated if it is alleged the defendant ‘is indebted to the

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plaintiff in a certain sum for money had and received by the

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defendant for the use of the plaintiff.”

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and quotations omitted).

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anywhere in the FAC that Defendant owes him any concrete amount,

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Defendant’s argument is well-taken.

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Dismiss this cause of action is thus GRANTED with leave to amend.

Id. (internal citations

Because Plaintiff has failed to allege

Defendant’s Motion to

9
CONCLUSION

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11
12

For the reasons stated above, Defendants’ Motion to Dismiss

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(ECF No. 29) is GRANTED with leave to amend.

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twenty (20) days following the date this Memorandum and Order is

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electronically filed, Plaintiff may (but is not required to) file

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an amended complaint.

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said twenty (20)-day period, without further notice to the

18

parties, the causes of action dismissed by virtue of this

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Memorandum and Order will be dismissed with prejudice.

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21

Not later than

If no amended complaint is filed within

IT IS SO ORDERED.
Dated: July 10, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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