Liberty Mutual Insurance Company v. UPA California et al

Filing 47

ORDER by Magistrate Judge Bernard Zimmerman granting with leave to amend 25 Motion to Dismiss (bzsec, COURT STAFF) (Filed on 11/18/2008)

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 ) LIBERTY MUTUAL INSURANCE CO., a Massachusetts Corp., ) ) Plaintiff(s), ) ) ) v. ) UPA CALIFORNIA, a California) general partnership, et al.,) ) ) ) Defendant(s). ) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

No. C08-0611 BZ ORDER GRANTING LEAVE TO AMEND

Having read the papers filed in connection with Liberty Mutual's motion to dismiss the counterclaim, I find no need for argument and VACATE the hearing scheduled for December 3, 2008. IT IS HEREBY ORDERED that the motion to dismiss the counterclaim is GRANTED with leave to amend. I find the

allegations of the counterclaim replete with legal conclusions but short of factual allegations, especially the first two claims. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965

(2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation")). 1

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In amending, counterclaimants shall allege which contracts they claim Liberty Mutual breached and how it breached them. They shall allege what Liberty Mutual did to They

breach the covenant of good faith and fair dealing.

should clarify what duty they claim Liberty owed them that was breached by failing to obtain the executed amendment from Anderson. Counterclaimants shall file an amended counterclaim by December 15, 2008. Dated: November 18, 2008 Bernard Zimmerman United States Magistrate Judge
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