Synnex Corporation v. Wattles

Filing 57

ORDER by Judge Hamilton Granting 49 Motion to Dismiss Third Party Complaint and Vacating Hearing Date (pjhlc2S, COURT STAFF) (Filed on 1/9/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SYNNEX CORPORATION,
Plaintiff,

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v.
MARK J. WATTLES, et al.,

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For the Northern District of California

United States District Court

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No. C 11-1496 PJH
ORDER GRANTING MOTION
TO DISMISS THIRD PARTY
COMPLAINT AND VACATING
HEARING DATE

Defendants.
_______________________________/

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Before the court is third-party defendant Hewlett-Packard Company’s (“HP”) second

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motion to dismiss the third-party complaint pursuant to FRCP 12(b)(6). Having read the

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parties’ papers and carefully considered their arguments and the relevant legal authority,

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and having had a prior hearing on the same issues and determined that another hearing is

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not necessary, the court VACATES the January 18, 2012 hearing date and GRANTS HP’s

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motion to dismiss for the reasons that follow.

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1.

Wattles' amended claim for fraud fails to overcome the deficiencies previously

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noted by the court in the August 11, 2011 order granting HP's previous motion to dismiss.

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As a preliminary matter, Wattles has failed to re-plead his claim for fraudulent concealment,

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per se, and has instead re-stated his claim as one alleging intentional misrepresentation.

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The elements of an action for intentional misrepresentation are: (1)

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misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4)

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justifiable reliance; and (5) resulting damage." Cicone v. URS Corp., 183 Cal.App.3d 194,

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200 (1986). Rule 9(b)'s particularity requirement also apply. See Vess v. Ciba-Geigy Corp.

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USA, 317 F.3d 1097, 1103 (9th Cir. 2003).

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While Wattles has now included specific allegations with respect to the affirmative

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representations purportedly made by Solomon, Wattles’ allegations remain insufficient to

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demonstrate the critical elements of scienter, intent to defraud, and damages. While

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Wattles is technically correct that scienter may be generally averred, this does not obviate

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the need for Wattles to satisfy Rule 8 pleading standards – which plaintiff’s conclusory and

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sparse allegations fail to do. See Amended Third Party Complaint, ¶ 41. Wattles’ equally

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conclusory allegation that HP failed to disclose facts “with an intent to defraud,” is equally

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unavailing, such that Rule 9(b) remains unsatisfied. Finally, Wattles has failed to cure the

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previously noted deficiency with respect to damages. Accordingly, the motion to dismiss

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the cause of action for intentional misrepresentation is GRANTED.
2.

Because Wattles has failed to adequately allege any basis for imposing

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For the Northern District of California

United States District Court

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liability against HP in his amended third-party complaint, the court also GRANTS the

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motion to dismiss Wattles' claim for equitable indemnification.

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For the foregoing reasons, the court hereby DISMISSES Wattles' third-party

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complaint. Because Wattles has already been given an opportunity to amend and has filed

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an amended third-party complaint containing some of the same deficiencies previously

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noted by the court, any further amendment is likely to be futile and the dismissal is with

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prejudice.

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IT IS SO ORDERED.
Dated: January 9, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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