Wilson v. Compass Vision, Inc. et al

Filing 142

ORDER by Magistrate Judge Bernard Zimmerman granting in part and denying in part (138) Motion to Dismiss in case 3:07-cv-03431-BZ (bzsec, COURT STAFF) (Filed on 8/5/2009)

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 ) ) Plaintiff(s), ) ) ) v. ) COMPASS VISION INC., et al.,) ) ) ) Defendant(s). ) ) ) COMPASS VISION, INC., ) Cross-Complainant,) ) ) v. ) ) MAXIMUS, INC., ) Cross-Defendant. ) ) DEBORAH WILSON, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

No. C07-3431 BZ Related Cases: C07-5642 BZ C08-4118 BZ C09-2016 BZ

ORDER GRANTING MOTION FOR MORE DEFINITE STATEMENT

Before the Court is cross-defendant Maximus, Inc.'s motion to dismiss Compass Vision, Inc.'s cross-complaint, or in the alternative, for a more definite statement. The cross-

complaint pleads four related claims, all to the effect that Maximus has failed to defend or to agree to indemnify Compass Vision from plaintiff's complaint. 1 The duty to indemnify

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arises, the cross-complaint alleges, by reason of the negligence or willful misconduct of Maximus, its employees or agents. However, as Maximus correctly points out, the cross-

complaint pleads no facts from which a court could conclude that Maximus acted negligently or committed willful misconduct. As the Supreme Court recently explained in U.S. , 129 Sup. Ct. 1937, (2009),

Ashcroft v. Iqbal

conclusory recitations of the legal elements of a claim without factual support are no longer adequate to state a claim. None of the cases Compass Vision cites were decided

after Iqbal, which has generally been interpreted as having tightened federal pleading standards. Service, F.3d Moss v. U.S. Secret Cir.)

, 2009 WL 2052985 at *5-6 (9th

Under the circumstances, the Court finds no need for further briefing or argument and vacates the hearing presently set for September 23, 2009. IT IS HEREBY ORDERED that the

motion of Maximus for a more definite statement is GRANTED and that the motion to dismiss is DENIED without prejudice to being renewed after the amended cross-complaint if filed. Moss, supra, at *1. Compass Vision shall file an amended See

cross-complaint by August 26, 2009. Dated: August 5, 2009 Bernard Zimmerman United States Magistrate Judge
G:\BZALL\-BZCASES\WILSON\ORD GRANTING MORE DEF STMT.MAXIMUS.wpd

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