Ledbetter v. Swissport Fueling, Inc.

Filing 58

ORDER by Judge ARMSTRONG granting 53 Motion to Dismiss (lrc, COURT STAFF) (Filed on 6/26/2012)

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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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CORY LEDBETTER,

Case No: C 11-01405 SBA

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Plaintiff,
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v.
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ORDER GRANTING MOTION TO
DISMISS AND GRANTING
REQUEST FOR LEAVE TO
AMEND

SWISSPORT FUELING INC.,
Docket 53.

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Defendant.
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13 SWISSPORT FUELING INC.,
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Third-Party Plaintiff,
v.

16 MMI TANK, INC.,
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Third-Party Defendant.

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The parties are presently before the Court on MMI Tank, Inc.'s ("MMI Tank")

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motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 53.

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Plaintiff Cory Ledbetter ("Plaintiff") has filed a statement of non-opposition to MMI Tank's

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motion, but has requested leave to file a second amended complaint. Dkt. 55. MMI Tank

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opposes Plaintiff's request for leave to file a second amended complaint. Dkt. 56. Having

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read and considered the papers filed in connection with these matters and being fully

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informed, the Court hereby GRANTS MMI Tank's motion to dismiss and GRANTS

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Plaintiff's request for leave to file a second amended complaint, for the reasons stated

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below. The Court, in its discretion, finds these matters suitable for resolution without oral

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argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

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I.

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DISCUSSION
In light of Plaintiff's statement of non-opposition, the Court GRANTS MMI Tank's

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motion to dismiss the first amended complaint. Because it is not clear that the first

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amended complaint cannot be saved by any amendment, the Court GRANTS Plaintiff's

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request for leave to amend. See Intri–Plex Techs. v. Crest Group, Inc., 499 F.3d 1048,

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1056 (9th Cir. 2007) (Dismissal without leave to amend is proper only if it is clear that "the

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complaint could not be saved by any amendment."). While MMI Tank contends that

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Plaintiff's request for leave to amend should be denied, MMI Tank has failed to

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demonstrate that the first amended complaint cannot be saved by any amendment. Indeed,

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MMI Tank states that "it does not appear that plaintiff can cure his complaint by making

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additional allegations." Dkt. 56 at 2 (emphasis added).

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II.

CONCLUSION

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For the reasons stated above, IT IS HEREBY ORDERED THAT:

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1.

MMI Tank's motion to dismiss the first amended complaint is GRANTED.

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2.

Plaintiff's request for leave to file a second amended complaint is

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GRANTED. Plaintiff shall have twenty-one (21) days from the date this Order is filed to

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file a second amended complaint. The Court warns Plaintiff that the failure to timely file a

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second amended complaint shall result in dismissal of this action with prejudice. MMI

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Tank shall notify the Court in the event Plaintiff fails to comply with this deadline.

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3.

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IT IS SO ORDERED.

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This Order terminates Docket 53.

Dated: 6/21/12

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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