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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 SYNNEX CORPORATION, Plaintiff, 8 9 v. MARK J. WATTLES, et al., 11 For the Northern District of California United States District Court 10 No. C 11-1496 PJH ORDER GRANTING MOTION TO DISMISS THIRD PARTY COMPLAINT AND VACATING HEARING DATE Defendants. _______________________________/ 12 13 Before the court is third-party defendant Hewlett-Packard Company’s (“HP”) second 14 motion to dismiss the third-party complaint pursuant to FRCP 12(b)(6). Having read the 15 parties’ papers and carefully considered their arguments and the relevant legal authority, 16 and having had a prior hearing on the same issues and determined that another hearing is 17 not necessary, the court VACATES the January 18, 2012 hearing date and GRANTS HP’s 18 motion to dismiss for the reasons that follow. 19 1. Wattles' amended claim for fraud fails to overcome the deficiencies previously 20 noted by the court in the August 11, 2011 order granting HP's previous motion to dismiss. 21 As a preliminary matter, Wattles has failed to re-plead his claim for fraudulent concealment, 22 per se, and has instead re-stated his claim as one alleging intentional misrepresentation. 23 The elements of an action for intentional misrepresentation are: (1) 24 misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) 25 justifiable reliance; and (5) resulting damage." Cicone v. URS Corp., 183 Cal.App.3d 194, 26 200 (1986). Rule 9(b)'s particularity requirement also apply. See Vess v. Ciba-Geigy Corp. 27 USA, 317 F.3d 1097, 1103 (9th Cir. 2003). 28 While Wattles has now included specific allegations with respect to the affirmative 1 representations purportedly made by Solomon, Wattles’ allegations remain insufficient to 2 demonstrate the critical elements of scienter, intent to defraud, and damages. While 3 Wattles is technically correct that scienter may be generally averred, this does not obviate 4 the need for Wattles to satisfy Rule 8 pleading standards – which plaintiff’s conclusory and 5 sparse allegations fail to do. See Amended Third Party Complaint, ¶ 41. Wattles’ equally 6 conclusory allegation that HP failed to disclose facts “with an intent to defraud,” is equally 7 unavailing, such that Rule 9(b) remains unsatisfied. Finally, Wattles has failed to cure the 8 previously noted deficiency with respect to damages. Accordingly, the motion to dismiss 9 the cause of action for intentional misrepresentation is GRANTED. 2. Because Wattles has failed to adequately allege any basis for imposing 11 For the Northern District of California United States District Court 10 liability against HP in his amended third-party complaint, the court also GRANTS the 12 motion to dismiss Wattles' claim for equitable indemnification. 13 For the foregoing reasons, the court hereby DISMISSES Wattles' third-party 14 complaint. Because Wattles has already been given an opportunity to amend and has filed 15 an amended third-party complaint containing some of the same deficiencies previously 16 noted by the court, any further amendment is likely to be futile and the dismissal is with 17 prejudice. 18 19 IT IS SO ORDERED. Dated: January 9, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 20 21 22 23 24 25 26 27 28 2

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