Knowles v. eBay, Inc et al

Filing 61

ORDER by Judge Hamilton granting 34 Motion to Dismiss; granting 36 Motion to Dismiss; granting 37 Motion to Dismiss (pjhlc1, COURT STAFF) (Filed on 3/7/2013)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
6
7

LUKE KNOWLES,
Plaintiff,

8
9

v.

ORDER GRANTING MOTIONS
TO DISMISS

EBAY, INC., et al.,

11
For the Northern District of California

10

United States District Court

No. C 12-5211 PJH

Defendants.
_______________________________/

12
13

Defendants’ motions to dismiss the complaint for failure to state a claim came on for

14

hearing before this court on March 6, 2013. Plaintiff Luke Knowles appeared by his

15

counsel Matthew T. Hurst, James Mills, and Matthew T. Heffner. Defendants eBay, Inc.

16

and eBay Insurance Service, Inc. appeared by their counsel Fred R. Puglisi. Defendant

17

Brown & Brown of Missouri, Inc. appeared by its counsel Joseph E. Addiego. Defendant

18

Fireman’s Fund Insurance Company appeared by its counsel Jodi K. Swick and Eric J.

19

Knapp. Having read the parties’ papers and carefully considered their arguments and the

20

relevant legal authority, the court hereby GRANTS the motion as follows and for the

21

reasons stated at the hearing.

22

1.

The second cause of action for negligence, which is asserted against eBay

23

Insurance Service, Inc., and Brown and Brown of Missouri, Inc., only, is DISMISSED with

24

leave to amend to allege facts supporting the elements of the claim – in particular duty and

25

breach – as to each of those two defendants.

26
27
28

2.

The third cause of action for rescission and the fifth cause of action for unjust

enrichment are DISMISSED with prejudice, as neither is an independent cause of action.
3.

The fourth cause of action for illusory contract, the sixth cause of action for

1

unconscionable contract, and the seventh cause of action for unilateral mistake are

2

DISMISSED with leave to amend to state a single cause of action for breach of contract or

3

other contract-related claim, as it is not clear whether plaintiff is asserting that there was or

4

was not a contract to which he was a party or third-party beneficiary. Each defendant’s role

5

must be specifically identified.

6

4.

The § 17200 claim is DISMISSED with leave to amend to allege facts

7

supporting the claim of “unlawful” and “unfair” business practices, as those terms have

8

been construed by the courts, as to each defendant. In particular, plaintiff must identify the

9

predicate law which he claims has been violated, and must identify the alleged “unfair”

11
For the Northern District of California

United States District Court

10

practices and explain why they are unfair.
5.

The first amended complaint must specify facts supporting each cause of

12

action, as to each defendant. No new parties may be added and no new claims or theories

13

may be pled unless plaintiff first obtains leave of court.

14
15

6.

The first amended complaint shall be filed no later than April 3, 2013.

Defendants’ response shall be filed no later than May 1, 2013.

16
17

IT IS SO ORDERED.

18

Dated: March 7, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

19
20
21
22
23
24
25
26
27
28
2