Wond Family Kapalama, LLC v. Continental Tire The Americas, LLC

Filing 133

ORDER DENYING THIRD-PARTY DEFENDANT'S MOTION TO DISMISS DEFENDANT CONTINENTAL TIRE THE AMERICAS LLC'S THIRD-PARTY COMPLAINT, FILED ON AUGUST 21, 2017 (DKT. 42 ) re 88 , 127 - Signed by JUDGE LESLIE E. KOBAYASHI on 5/23/2018. On the basis of the foregoing, Melim's "Motion to Dismiss Defendant Continental Tire the Americas, LLC's Third-Party Complaint, Filed on August 21, 2017 [Dkt. 42]," filed December 20, 2017, is HEREBY DENIED. Melim is ORDERED to file its answer to the Third-Party Complaint by June 20, 2018. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WOND FAMILY KAPALAMA, LLC a
Hawai`i limited liability
company,

)
)
)
)
Plaintiff,
)
)
)
vs.
)
)
CONTINENTAL TIRE THE
AMERICAS, LLC, an Ohio
)
)
limited liability company,
)
)
Defendant.
_____________________________ )
)
CONTINENTAL TIRE THE
)
AMERICAS, LLC, an Ohio
)
limited liability company,
)
)
Third-Party
)
Plaintiff,
)
)
vs.
)
)
MELIM LTD.,
)
)
Third-Party
)
Defendant.
_____________________________ )

CIVIL NO. 16-00676 LEK-KJM

ORDER DENYING THIRD-PARTY DEFENDANT’S MOTION TO DISMISS
DEFENDANT CONTINENTAL TIRE THE AMERICAS LLC’S
THIRD-PARTY COMPLAINT, FILED ON AUGUST 21, 2017 [DKT. 42]
Before the Court is Third-Party Defendant Melim, Ltd.’s
(“Melim”) “Motion to Dismiss Defendant Continental Tire the
Americas, LLC’s Third-Party Complaint, Filed on August 21, 2017
[Dkt. 42]” (“Motion”), filed on December 20, 2017.
no. 88.]

[Dkt.

On February 16, 2018, Plaintiff/Counterclaim Defendant

Wond Family Kapalama, LLC (“Wond Family”) and Defendant/

Counterclaimant/Third-Party Plaintiff Continental Tire the
Americas, LLC (“Continental Tire”) each filed its memorandum in
opposition.

[Dkt. nos. 106, 107.]

February 26, 2018.

[Dkt. no. 109.]

hearing on March 12, 2018.

Melim filed its reply on
This matter came on for

On April 30, 2018, this Court issued

an entering order (“EO”) ruling on the Motion.
supersedes that EO.

The instant Order

Melim’s Motion is hereby denied for the

reasons set forth below.
BACKGROUND
On December 28, 2016, Wond Family filed its Complaint
against Continental Tire.

Melim is not a party to the Complaint.

Wond Family brings this action pursuant to the Compensation and
Liability Act (“CERCLA”), 42 U.S.C. § 9607, et seq., and the
Hawai`i Environmental Response Law (“HERL”), Haw. Rev. Stat.
Chapter 128D.1

[Complaint at ¶ 1.]

Wond Family is the fee owner

of the real property at issue in this case – Tax Map Key No.
(1)1-5-021:024 (“the Property”).

On or about February 12, 1959,

Clarke Investment Corporation (“Clarke Investment”), as
sublessor, and Melim Service & Supply Co., Ltd. (“Melim
Service”), as sublessee, entered into a written sublease of the
Property.

According to the Complaint, it was amended or assigned

1

Wond Family describes HERL as the Hawai`i counterpart to
CERCLA. HERL is administered and enforced by the Hazard
Evaluation and Emergency Response Office (“HEER”) of the State of
Hawai`i Department of Health (“HDOH”). [Complaint at ¶ 12.]
2

on or about December 29, 1975, such that The General Tire and
Rubber Company (“General Tire”) was the sublessee.

The

assigned/amended document is referred to as “the Sublease.”
Continental Tire is the successor sublessee under the Sublease
because General Tire is its corporate predecessor.

Wond Family

is the successor sublessor under the Sublease because Kapalama
Associates LLC (“Kapalama Associates”) acquired Clarke
Investment’s interest, and Wond Family acquired both the fee
interest in the Property, as well as Kapalama Associates’ rights,
including Kapalama Associate’s claims against Continental Tire.
[Complaint at ¶¶ 17-21.]
The Sublease expired on October 31, 2012, and
Continental Tire stopped paying rent at that time.

However,

Continental Tire ceased business operations on the Property prior
to 2012.

For most of the time covered by the Sublease,

Continental Tire and/or its predecessors operated tire and
automobile services on the Property.

This involved the use of

hydraulic hoists, underground lines, and tanks.

The Complaint

alleges Continental Tire and its predecessors also disposed of
hazardous substances on the Property during the Sublease term.
[Id. at ¶¶ 23-26.]

Covenant 19 of the Sublease states:

That at the end of the said term, or other sooner
determination of this lease, the Lessee will
peaceably and quietly deliver up to the Lessors
possession of the land hereby demised, together
with all erections and improvements upon or
belonging to the same, by whomsoever made, in good
3

repair, order and condition, reasonable wear and
tear excepted.
[Id. at ¶ 22.]
Wond Family commissioned a Phase I environmental site
assessment (“ESA”) report by Bureau Veritas North America, Inc.
(“Bureau Veritas”) concerning the Property (“Phase I Report”),
and the August 12, 2011 report identified certain environmental
conditions, including “the likelihood of contamination from prior
automotive repair and services conducted on the premises.”
at ¶¶ 27-28.]

[Id.

The Phase I Report recommended that a Phase II ESA

study be conducted.

[Id. at ¶ 29.]

Although it denied any obligation to conduct
environmental testing on the Property, Continental Tire retained
ENPRO Environmental (“ENPRO”) to perform a Phase II ESA study.
The investigation began on September 14, 2012.

[Id. at ¶ 33.]

The Phase II ESA testing was completed on November 8, 2012, and
ENPRO released a report dated December 11, 2012 (“Phase II
Report”).

ENPRO detected benzo(a)pyrene and lead levels in

excess of HDOH’s Tier 1 Environmental Action Levels for
commercial/industrial use (“Tier 1 C/I EALs”) and recommended
excavating the soil in immediate vicinity of the locations where
those contaminant levels were found.

[Id. at ¶¶ 35-38.]

Bureau Veritas reviewed the Phase II Report for Wond
Family and provided a comment letter dated February 20, 2013.
The comment letter was provided to HDOH.
4

[Id. at ¶ 39.]

Continental Tire commissioned ENPRO to conduct a
Phase III remediation of the Property in accordance with the
Phase II Report.
to 21, 2013.

The remediation was conducted from February 13

After the remediation work, ENPRO found no further

concentrations of contaminants in excess of Tier 1 C/I EALs and
recommended no further remedial action.

The remediation work and

ENPRO’s findings are described in a March 12, 2013 report (“ENPRO
Phase III Report”).

[Id. at ¶ 40.]

Wond Family commissioned Bureau Veritas to test the
excavation areas, and Bureau Veritas’s sampling detected
petroleum (TPH-RRO) and benzo(a)pyrene at levels exceeding HDOH
Tier 1 Unrestricted EAL.

Bureau Veritas advised further

remediation and testing was necessary.

[Id. at ¶ 41.]

Wond

Family’s counsel informed Continental Tire he disagreed with the
Continental Tire’s opinion that HDOH would issue a No Further
Action (“NFA”) determination, and he asserted carryover rent
continued to accrue.

[Id. at ¶ 44.]

On September 23, 2013, HDOH issued a letter informing
Continental Tire that it: determined the Phase II Report to be
deficient; rejected the Phase II Report based on numerous
technical errors; rejected the ENPRO Phase III Report because the
Phase II Report was inadequate to determine the necessary
remedial actions; refused to issue a NFA determination for

5

ENPRO’s soil removal; and required a full site characterization
of the Property.

[Id. at ¶¶ 46-47.]

In March and April 2014, Kevin S. Kennedy Consulting,
LLC (“Kennedy Consulting”) conducted a follow-up site
investigation for Continental Tire.

[Id. at ¶ 48.]

Kennedy

Consulting’s May 20, 2014 Follow-Up Site Investigation Report
(“Follow-Up Report”): noted lead and total petroleum hydrocarbons
as lube oil range organics (“TPH-ORO”) in amounts exceeding the
HDOH Tier 1 C/I EALs; noted mercury, lead, TPH-O, polychlorinated
biphenyls (“PCBs”), and semi-volatile organic compounds (“SVOCs”)
in amounts exceeding the HDOH Tier 1 Unrestricted EALs; and
requested a Conditional NFA determination, with the
implementation of an Environmental Hazard Management Plan
(“EHMP”) for the Property.

[Id. at ¶¶ 50-51.]

In a July 21, 2014 letter, HEER informed Continental
Tire it reviewed the Follow-Up Report, and it could not grant a
Conditional NFA determination at that time.

However, HEER stated

the issue could be revised after either the entire site was
capped (“Capping Remedy”), with an HDOH-approved EHMP for the
Property, and/or soil excavation to a depth of two feet below
ground surface (“bgs”) from decision units 1 and 2 (“Excavation
Remedy”).

[Id. at ¶ 52.]
According to the Complaint, Continental Tire’s position

is that the Capping Remedy satisfies its obligations under

6

Covenant 19, and excavating two feet of soil on the entire
Property (“Full Excavation Remedy”) was not required because the
Sublease did not obligate Continental Tire to remediate the
Property to below the HDOH Tier 1 Unrestricted EALs.
¶ 53.]

[Id. at

However, Continental Tire has not implemented either the

Capping Remedy or the Full Excavation Remedy.

[Id. at ¶ 55.]

Wond Family contends the Capping Remedy does not comply
with Covenant 19 because it would leave contamination on the
Property in excess of the HDOH Tier 1 C/I EALs.

[Id. at ¶ 54.]

Wond Family had Bureau Veritas prepare a Remedial Alternatives
Analysis (“RAA”), analyzing the following responses to the
contamination on the Property: no remediation; the Capping
Remedy; the Full Excavation Remedy; and a full excavation to a
dept of four feet bgs.

Bureau Veritas opined that the Full

Excavation Remedy was the preferred alternative.

The draft RAA

analysis was delivered to HEER on or about December 23, 2015.

In

a letter dated March 10, 2016, the HEER office commented on the
draft RAA and determined that either the Capping Remedy or the
Full Excavation Remedy was acceptable.

[Id. at ¶¶ 56-57.]

On or

about July 18, 2016, Bureau Veritas submitted a revised RAA to
HEER, incorporating the comments in the March 10, 2016 letter.
In an August 18, 2016 letter, HEER instructed Wond Family to
select either the Capping Remedy or the Full Excavation Remedy
and submit a Removal Action Report after the implementation of

7

the selected remedy.

[Id. at ¶¶ 58-59.]

Wond Family went

through a public notification process and has commenced the Full
Excavation Remedy.

[Id. at ¶¶ 60-61.]

The Complaint alleges the following claims: a CERCLA
cost recovery claim pursuant to 42 U.S.C. § 9607(a) (“Count I”);
a HERL contribution/indemnity claim pursuant to Haw. Rev. Stat.
§ 128D-18(d) (“Count II”); a claim for a declaratory judgment
regarding liability for future response costs (“Count III”);
breach of contract (“Count IV”); and a CERCLA and HERL indemnity
claim (“Count V”).
Continental Tire filed its Answer on January 30, 2017,
including a counterclaim against Wond Family (“Counterclaim”).
[Dkt. no. 10.]

Continental Tire later obtained leave from the

magistrate judge to file a third-party complaint.

[Dkt. nos. 37

(Motion for Leave to File Third-Party Complaint), 40 (EO granting
motion).]

Continental Tire filed its Third-Party Complaint

Against Melim, Ltd. (“Third-Party Complaint”) on August 21, 2017.
[Dkt. no. 42.]
The Third-Party Complaint alleges Melim is a “dissolved
domestic profit corporation,” and Melim is the entity named in
the Sublease by way of a name change.
¶¶ 3, 9.]

[Third-Party Complaint at

On or around March 17, 1969, Melim Tire & Rubber Co.,

Ltd. (“Melim Tire”) entered into an Assignment of Leases

8

(“Assignment”) to General Tire.

[Id. at ¶ 10.]

1981, Melim Tire “merged into and with” Melim.

On December 31,
[Id. at ¶ 11.]

Continental Tire cites the allegation in the Complaint
that “‘Continental Tire and its predecessors in interest disposed
of hazardous substances on the Property during the term of the
Sublease.’”

[Id. at ¶ 13 (quoting Complaint at ¶ 26).]

Continental Tire asserts it investigated possible contamination
on the Property and removed contaminated soil.
17.]

[Id. at ¶¶ 14,

Continental Tire alleges “[a]ll or some of the

contamination or contaminated soil was placed on the Property by
parties other than Continental Tire, including Melim.”
¶ 16.]

[Id. at

Thus, Continental Tire alleges Wond Family and Melim

benefitted from Continental Tire’s remediation efforts, but
neither has compensated Continental Tire.

[Id. at ¶ 19.]

The Third-Party Complaint alleges unjust enrichment
(“Third-Party Count I”); quantum meruit (“Third-Party Count II”);
breach of contract (“Third-Party Count III”); and a claim for
indemnity and contribution (“Third-Party Count IV”).
The Motion seeks the dismissal of the Third-Party
Complaint with prejudice and an award of attorney’s fees and
costs.

9

DISCUSSION
I.

Materials Beyond the Pleadings
Melim’s Motion includes the Declaration of Patricia

Melim and an exhibit – Melim’s Articles of Dissolution.

Melim

also relies upon materials Continental Tire submitted with other
motions in this case.

See, e.g., Mem. in Supp. of Motion at 3

(quoting Continental Tire’s Motion for Leave to File Third-Party
Complaint, filed 7/28/17 (dkt. no. 37), Decl. of Lisa A. Bail,
Exh. 4 at 6); id. at 4 (discussing Continental Tire’s Motion for
Summary Judgment as to Counts I, II, and III of Plaintiff’s
Complaint (“Continental’s Counts I-III Motion”), filed 10/6/17
(dkt. no. 56)).
As a general rule, this Court’s scope of review in
considering a motion to dismiss is limited to the allegations in
the complaint.

See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d

992, 998 (9th Cir. 2010).

“[A] court may consider evidence on

which the complaint necessarily relies if: (1) the complaint
refers to the document; (2) the document is central to the
plaintiff’s claim; and (3) no party questions the authenticity of
the copy attached to the [Fed. R. Civ. P.] 12(b)(6) motion.”
(citations and internal quotation marks omitted).

Id.

Ordinarily,

consideration of other materials requires the district court to
convert a motion to dismiss into a motion for summary judgment.
Yamalov v. Bank of Am. Corp., CV. No. 10–00590 DAE–BMK, 2011 WL
10

1875901, at *7 n.7 (D. Hawai`i May 16, 2011) (citing Parrino v.
FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998)).2
None of the materials Melim relies upon meets the
requirements described in Daniels-Hall.

This Court therefore

cannot consider them without converting the Motion into a motion
for summary judgment, which this Court finds is not warranted
under the circumstances of this case.

This Court declines to

consider the additional materials submitted or cited by Melim.
Only the allegations in the Third-Party Complaint, which includes
Wond Family’s Complaint as Exhibit A, will be considered.
II.

Merits of the Motion
A.

Availability of Evidence
Melim argues the Third-Party Complaint should be

dismissed because there is insufficient evidence showing Melim
brought contaminated fill to the Property and it is not possible
to discover such evidence because so much time has passed since
Melim occupied the Property.

Thus, Melim argues Continental

Tire’s third-party claims fail to state plausible claims for
relief.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“a

complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face’”
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127
2

Parrino was superseded by statute on other grounds, as
stated in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676,
681-82 (9th Cir. 2006) (per curiam).
11

S. Ct. 1955 (2007))); id. (“A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” (citing Twombly, 550 U.S. at 556, 127 S.
Ct. 1955)).

Whether there is sufficient evidence to support the

claims in the Third-Party Complaint is an issue for summary
judgment, or possibly for trial.

See, e.g., Order Granting in

Part and Denying Plaintiff’s Motion for Partial Summary Judgment
Re: Count IV of Complaint and Denying All Other Motions for
Summary Judgment, filed 5/1/08 (dkt. no. 128) (granting summary
judgment on two discrete legal issues, but denying summary
judgment as to all claims).

Further, Continental Tire is

entitled to conduct discovery to test Melim’s assertion that no
relevant evidence can be obtained because of the passage of time.
Similarly, Melim’s concerns that Wond Family and Continental Tire
knew about contamination concerns and conducted testing on the
Property for a significant amount before notifying Melim, and the
possibility that this delay may have prejudiced Melim’s defense
to the Third-Party Complaint, can also be addressed through
discovery and motions practice.

These issues are not grounds for

dismissal of the Third-Party Complaint.

12

Melim’s Motion is

therefore denied as to its arguments regarding the availability
of evidence.3
B.

Statute of Repose
Melim argues HERL has a statute of repose, Haw. Rev.

Stat. § 128D-6(j), that bars Continental Tire’s claims in the
Third-Party Complaint.
Unlike a statute of limitations, which begins to
run when a claim accrues and may be subject to
equitable tolling, “[a] statute of repose bars any
suit that is brought after a specified time since
the defended acted . . ., even if this period ends
before the plaintiff has suffered a resulting
injury.” CTS Corp. v. Waldburger, --- U.S. ----,
134 S. Ct. 2175, 2182, 189 L. Ed. 2d 62 (2014). A
statute of repose is “therefore equivalent to a
cutoff, in essence an absolute bar on a
defendant’s temporal liability.” Id. at 2183
(internal citations and quotation marks omitted).
Nat’l Credit Union Admin. Bd. v. RBS Sec., Inc., 833 F.3d 1125,
1129 (9th Cir. 2016) (alterations in Nat’l Credit Union).

CERCLA

preempts state law statutes of limitations, but not statutes of
repose.

Id. at 1133-34 (citing 42 U.S.C. § 9658; CTS Corp., 134

S. Ct. 2180).

3

Because this Court has declined to consider materials
beyond the Third-Party Complaint, this Court does not address
Melim’s argument that, in light of Continental Tire’s positions
in Continental’s Counts I-III Motion, the Third-Party Complaint
should be dismissed based on judicial estoppel. Even if Melim’s
judicial estoppel argument was considered, it would be rejected
because judicial estoppel only applies if “the party has
succeeded in persuading a court to accept that party’s earlier
position.” See Zedner v. United States, 547 U.S. 489, 504 (2006)
(citation and internal quotation marks omitted). Because
Continental’s Counts I-III Motion was denied, there was no
judicial acceptance of the positions in that motion.
13

Section 128D-6(j) states: “No person other than a
government entity may recover costs or damages under this chapter
arising from a release which occurred before July 1, 1990.”
(Emphasis added.)

Hawai`i law recognizes certain statutory

periods as statutes of repose.

See, e.g., Estate of Baba v.

Kadooka, No. CAAP-12-0000420, 2013 WL 5676083, at *3 (Hawai`i Ct.
App. Oct. 18, 2013) (discussing six-year statute of repose in
Haw. Rev. Stat. § 657-7.3); Ass’n of Apartment Owners of Newtown
Meadows ex rel. Bd. of Dirs. v. Venture 15, Inc., 115 Hawai`i
232, 282-84, 167 P.3d 225, 275-77 (2007) (discussing Haw. Rev.
Stat.§ 657-8 as a statute of repose).

No Hawai`i case law

recognizes § 128D-6(j) as a statute of repose.

Even if

§ 128D-6(j) is a statute of repose, it only applies to HERL
claims, and the Third-Party Complaint does not allege any HERL
claims.

Thus, even if § 128D-6(j) is a statute of repose, it

does not require the dismissal of any of the claims in the ThirdParty Complaint.

The Motion therefore does not require a

determination of whether § 128D-6(j) is a statute of repose.
Because Continental Tire’s predecessor also occupied
the Property during a period prior to July 1, 1990, the issue of
whether § 128D-6(j) is a statute of repose can be addressed when
Wond Family’s HERL claims are decided on the merits.

If

Continental Tire does not raise the issue and Wond Family

14

ultimately prevails on its HERL claims,4 Melim can raise the
statute of repose issue when Continental Tire seeks to recover
the HERL damages it owes to Wond Family from Melim under the
Third-Party Complaint.

However, even if § 128D-6(j) is a statute

of repose, it would not affect Melim’s liability to Continental
Tire for any damages ultimately awarded against Continental Tire
for Wond Family’s claims that are not based on HERL.
C.

Statutes of Limitation
Melim also seeks dismissal of Continental Tire’s breach

of contract claim and Continental Tire’s equitable claims because
they are barred by the applicable statutes of limitations.

Under

Hawai`i law, contract claims are subject to a six-year statute of
limitations.

See, e.g., Honolulu Acad. of Arts v. Greene, CIVIL

NO. 15-00355 DKW-KSC, 2016 WL 4522667, at *4 (D. Hawai`i Aug. 29,
2016) (citing Haw. Rev. Stat. § 657-1).

Continental Tire’s

equitable claims are subject to the statute of limitations that
applies to the legal claims that are analogous to the equitable
claims.

See Small v. Badenhop, 67 Haw. 626, 642, 701 P.2d 647,

657 (1985) (“A court of equity is not bound by the statute of
limitations, but, in the absence of extraordinary circumstances,

4

For purposes of Melim’s Motion, Continental Tire has taken
the position that § 128D-6(j) is not a statute of repose. [Mem.
in Opp. at 17.] Further, Melim did not assert a statute of
repose argument when it sought summary judgment as to Wond
Family’s HERL claims. See generally, Continental’s Counts I-III
Motion; Continental Tire’s Motion for Summary Judgment as to
Count V of Plaintiff’s Complaint, filed 10/6/17 (dkt. no. 58).
15

it will usually grant or withhold relief in analogy to the
statute of limitations relating to law actions of like
character.” (citation and quotation marks omitted)).

This Court

agrees with Melim that Continental Tire’s equitable claims
against it are analogous to Continental Tire’s breach of contract
claim.

Therefore a six-year statute of limitations also applies

to Continental Tire’s equitable claims.
Under Hawai`i law, a breach of contract claim generally
accrues when the breach occurs.

Honolulu Acad. of Arts, 2016 WL

4522667, at *4 (citing Au v. Au, 63 Haw. 210, 219, 626 P.2d 173,
180 (1981)).

However, the “discovery rule” is an exception to

the general accrual rule and, under the discovery rule, “a breach
of contract claim accrues when the plaintiff ‘discovers or could
have discovered, through the exercise of reasonable diligence,
all of the facts essential to his cause of action.’”

Moddha

Interactive, Inc. v. Philips Elec. N. Am. Corp., 92 F. Supp. 3d
982, 995 (D. Hawai`i 2015) (quoting Gabriel Techs. Corp. v.
Qualcomm Inc., 857 F. Supp. 2d 997, 1010 (S.D. Cal. 2012)), aff’d
sub nom., 654 F. App’x 484 (Fed. Cir. 2016).5

In considering

Melim’s Motion, this Court assumes the factual allegations in the
Third-Party Complaint, which incorporates the factual allegations

5

Hawai`i follows California case law regarding the
discovery rule. Moddha Interactive, 92 F. Supp. 3d at 993
(citing Ass’n of Apartment Owners of Newtown Meadows v. Venture
15, Inc., 115 Hawai`i 232, 167 P.3d 225, 274 (2007)).
16

in the Complaint, to be true.

See Twombly, 550 U.S. at 572 (“a

judge ruling on a defendant’s motion to dismiss a complaint must
accept as true all of the factual allegations contained in the
complaint” (citations and internal quotation marks omitted)).
Those factual allegations support a plausible argument that
Continental Tire’s claims against Melim may not be time-barred
because of the discovery rule.

Melim’s Motion is denied, to the

extent it seeks dismissal of the Third-Party Complaint on statute
of limitations grounds.
D.

Claims Based on Alternate Theories
Finally, Melim argues Continental Tire’s equitable

claims should be dismissed because Continental Tire had adequate
contractual remedies for any alleged breach of the Assignment.
The pleading of alternate claims or theories is permitted, even
where they may be inconsistent.

Fed. R. Civ. P. 8(d)(2)-(3).

Further, in a case involving a breach of contract claim and a
tort claim, this district court stated that plaintiffs “may
allege both contract and tort claims against [the defendant] and
are not required to elect a single legal theory upon which to
proceed.

If [the defendant]’s conclusions are correct, and the

conversion claim merely duplicates the breach of contract claims,
the [plaintiffs] cannot ultimately recover under both theories.”
Sunday’s Child, LLC v. Irongate AZREP BW LLC, CIVIL NO. 13-00502
DKW-RLP, 2017 WL 561338, at *4 (D. Hawai`i Feb. 10, 2017)
17

(emphases in original).

The plaintiff is not required to

expressly state that the claims are being pled in the
alternative.

Id. at *4 n.3.

This Court therefore rejects

Melim’s argument that Continental Tire’s equitable claims must be
dismissed because they are inconsistent with Continental Tire’s
breach of contract claim.
CONCLUSION
On the basis of the foregoing, Melim’s “Motion to
Dismiss Defendant Continental Tire the Americas, LLC’s
Third-Party Complaint, Filed on August 21, 2017 [Dkt. 42],” filed
December 20, 2017, is HEREBY DENIED.

Melim is ORDERED to file

its answer to the Third-Party Complaint by June 20, 2018.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 23, 2018.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

WOND FAMILY KAPALAMA, LLC VS. CONTINENTAL TIRE THE AMERICAS, LLC
VS. MELIM LTD.; CIVIL 16-00676 LEK; ORDER DENYING THIRD-PARTY
DEFENDANT’S MOTION TO DISMISS DEFENDANT CONTINENTAL TIRE THE
AMERICAS LLC’S THIRD-PARTY COMPLAINT, FILED ON AUGUST 21, 2017
[DKT. 42]

18