Shanghai Hailian Electric Tools Co Ltd v. Home Depot International Inc
MEMORANDUM OPINION AND ORDER granting 35 MOTION to Dismiss the Second Amended Complaint filed by Home Depot USA Inc. (Ordered by Judge Sidney A Fitzwater on 9/12/2017) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
SHANGHAI HAILIAN ELECTRIC
TOOLS CO., LTD.,
HOME DEPOT U.S.A., INC.,
§ Civil Action No. 3:16-CV-1451-D
Defendant Home Depot U.S.A., Inc. (“Home Depot”) moves to dismiss plaintiff
Shanghai Hailian Electric Tools Co., Ltd.’s (“SHETC’s”) second amended complaint under
Fed. R. Civ. P. 12(b)(6) and 9(b) for failure to state a claim on which relief can be granted
and failure to plead fraud with particularity. For the reasons explained, the court grants the
motion and dismisses this action with prejudice by judgment filed today.
The background facts of this case are set out in two prior memorandum opinions and
orders and need not be repeated at length. See Shanghai Hailian Elec. Tools Co. v. Home
Depot U.S.A., Inc., 2017 WL 588656, at *1-2 (N.D. Tex. Feb. 13, 2017) (“Shanghai II”);
Shanghai Hailian Elec. Tools Co. v. Home Depot Int’l, Inc., 2016 WL 5815896, at *1-2
(N.D. Tex. Oct. 5, 2016) (Fitzwater, J.) (“Shanghai I”). Home Depot, through Brinkmann
Corporation (“Brinkmann”) and Malibu Lighting Corporation (“Malibu”), ordered over $4.8
million in outdoor lighting products from SHETC in 2015. According to the second
amended complaint, SHETC manufactured and shipped these products for and to Home
Depot, allegedly expecting to be paid by Home Depot, but Home Depot has failed and
refused to pay the amount SHETC claims is due and owing.1
In Shanghai II the court dismissed SHETC’s quantum meruit, unjust enrichment, and
fraud claims against Home Depot, holding that SHETC had failed to plead a quantum meruit
claim because it did not plausibly allege facts demonstrating that Home Depot was
“reasonably notified” that SHETC expected to be paid by Home Depot, Shanghai II, 2017
WL 588656, at *4-5; that SHETC had failed to plead an unjust enrichment claim because it
did not allege that Home Depot obtained a benefit from SHETC by fraud, duress, or the
taking of an undue advantage, id. at *5-6; and that SHETC had failed to plead its fraud claim
with the specificity required by Rule 9(b), id. at *6-7. The court, however, granted SHETC
leave to amend.
SHETC timely filed a second amended complaint, alleging claims for quantum meruit,
unjust enrichment, fraud and civil conspiracy, and constructive trust. Home Depot moves
under Rules 12(b)(6) and 9(b) to dismiss SHETC’s second amended complaint with
Malibu and Brinkmann filed for bankruptcy on October 8, 2015. Home Depot
contends that SHETC has asserted claims against the Malibu bankruptcy estate totaling
almost $8 million and that Home Depot is also a creditor of the Malibu estate, and has
asserted claims of its own for nearly $6 million.
Under Rule 12(b)(6), the court evaluates the pleadings by “accept[ing] ‘all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby
Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive
Home Depot’s motion, SHETC’s second amended complaint must allege “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant[s] [are] liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above the speculative level[.]”).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (brackets omitted) (quoting Rule
8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Although “the pleading
standard Rule 8 announces does not require ‘detailed factual allegations,’” it demands more
than “‘labels and conclusions.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
And “‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting
Twombly, 550 U.S. at 555).
The court begins with SHETC’s quantum meruit claim.
Home Depot moves to dismiss SHETC’s quantum meruit claim on the ground that
SHETC’s second amended complaint does not cure the fatal deficiency the court identified
in Shanghai II (i.e., SHETC did not allege facts demonstrating that Home Depot had notice
that SHETC expected to be paid by Home Depot), or plausibly allege any facts that would
put Home Depot on notice that SHETC expected to be paid directly by Home Depot for
goods SHETC sold to Malibu and Brinkmann. It argues that although SHETC has added
allegations relating to the delivery of its products directly to Home Depot, none of its newlypleaded facts establishes that Home Depot was on notice that SHETC was looking to Home
Depot (as opposed to Brinkmann, Malibu, or their bank) for payment. SHETC responds that
it has pleaded sufficient facts to meet all of the elements of its quantum meruit claim.
As this court stated in Shanghai II, a quantum meruit claim requires that “the valuable
services must have been rendered, or materials furnished, ‘under such circumstances as
reasonably notified the person sought to be charged that the plaintiff in performing such
services was expecting to be paid by the person sought to be charged.’” Shanghai II, 2017
WL 588656, at *4 (quoting Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942,
944 (Tex. 1990)). SHETC alleged in its amended complaint that Home Depot placed orders
with SHETC through Malibu and Brinkmann, and that Home Depot, on receiving the goods
in the United States, “would then issue payment to Brinkmann or Malibu, who would then
use such proceeds to pay Plaintiff.” Am. Compl. ¶ 6. SHETC omits this allegation from its
second amended complaint and instead asserts that “by accepting the FOB price provided by
its supplier SHETC, Home Depot is well notified and knew that for all SHETC’s direct
import orders, SHETC expects to be paid by Home Depot after shipment.” 2d Am. Compl.
¶ 10. This conclusory allegation is insufficient to cure the pleading defect identified in
Shanghai II because SHETC has still not plausibly pleaded that Home Depot knew that
SHETC expected to be paid by Home Depot, as opposed to Brinkmann or Malibu. Although
SHETC has omitted from its amended complaint its allegation that Home Depot would issue
payment to Brinkmann and Malibu, who would then use such proceeds to pay SHETC, it
now attaches Exhibit “B,” in which Brinkmann’s president states that Home Depot’s bank
“will pay both Malibu and ERA for the upcoming direct import orders,” and that Home
Depot’s bank “will issue payment at the same time that Malibu gets paid by [Home Depot].”
2d Am. Compl. at Ex. B (emphasis added). It is unclear what entity “ERA” refers to, but
even assuming that it refers to SHETC, there is no indication in the second amended
complaint that Home Depot ever paid or intended to pay SHETC directly for any of the
lighting products Home Depot ordered through Brinkmann and Malibu. Instead, Exhibit B
makes clear that Home Depot was to pay Malibu. The court held in Shanghai II that
the amended complaint does not allege that Home Depot ever
once paid SHETC directly. Combined with the amended
complaint’s allegation that Home Depot in fact paid Brinkmann
or Malibu for products that SHETC manufactured, it would
seem implausible that SHETC rendered valuable services or
furnished materials under circumstances that reasonably notified
Home Depot that SHETC was expecting to be paid by Home
Depot. There is no apparent reason discernible from the
amended complaint why a prudent business would under such
circumstances pay SHETC rather than Brinkmann or Malibu.
Shanghai II, 2017 WL 588656, at *4. For the reasons explained in Shanghai II, the court
dismisses SHETC’s quantum meruit claim.
The court next addresses SHETC’s claim for unjust enrichment.
Home Depot moves to dismiss SHETC’s unjust enrichment claim, contending that
SHETC has not alleged facts that show that Home Depot obtained products from SHETC by
fraud, duress, or the taking of an undue advantage, and has not alleged that Home Depot
failed to pay Malibu or Brinkmann for any products that Home Depot actually received.2
SHETC responds that it has a valid claim because, in its second amended complaint, it has
alleged that Home Depot committed fraud and conspiracy to fraud, both as the principal of
Brinkmann and Malibu and by having superior knowledge but acquiescing to Brinkmann and
Home Depot also argues that SHETC’s prior judicial admissions as to the existence
of a contract defeat SHETC’s quantum meruit and unjust enrichment claims. Because the
court is dismissing SHETC’s quantum meruit and unjust enrichment claims on other grounds,
it need not address Home Depot’s argument.
Malibu’s fraudulent accounting and payment practice. SHETC therefore maintains that
Home Depot derived benefits from SHETC by taking an undue advantage.
“A party may recover under the unjust enrichment theory when one person has
obtained a benefit from another by fraud, duress, or the taking of an undue advantage.”
Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). SHETC has
not plausibly alleged that Home Depot obtained a benefit from SHETC by fraud, duress, or
the taking of an undue advantage. In its second amended complaint, SHETC alleges that
Home Depot, knowing that Brinkman[n] and Malibu had been
using SHETC’s proceeds to pay down their diminishing credit
line and their difficult financial conditions, still continued to
assign proceeds to them until the relationship is terminated.
And such termination was never disclosed to SHETC.
Therefore, Home Depot retained the benefit of the goods
received by taking an undue advantage of SHETC. And to
allow them not to pay the Plaintiff manufacturer when funds
provided for the costs are available, offends all traditional
notions of equity that restitution based on the theory of unjust
enrichment seeks to prevent.
2d Am. Compl. ¶ 16. These allegations plead, at most, that Brinkmann and Malibu took
undue advantage of SHETC and that Home Depot was aware of this. SHETC has not
alleged, however, that Home Depot took any undue advantage. For example, SHETC does
not assert that Home Depot failed to pay Brinkmann or Malibu for any of the lighting
products it received,3 or that Home Depot in any way benefited from Brinkmann and
In fact, SHETC specifically alleges that Home Depot “continued to assign proceeds
to [Brinkmann and Malibu] until the relationship is terminated.” 2d Am. Compl. ¶ 16.
Malibu’s failure to remit payment to SHETC. Allegations that Home Depot merely knew
that Brinkmann and Malibu were not remitting payment to SHETC, or that Home Depot
continued to pay Brinkmann and Malibu for the lighting products it received despite such
knowledge, do not plausibly plead that Home Depot defrauded SHETC or that it obtained
a benefit from SHETC by fraud, duress, or the taking of an undue advantage.
To the extent SHETC is attempting to use an agency theory to hold Home Depot (as
principal) liable for Brinkmann and Malibu’s failure (as agents) to remit payment to
SHETC—assuming such a theory is applicable in the context of a claim for unjust
enrichment—SHETC has not plausibly alleged that Brinkmann or Malibu was Home Depot’s
agent. “Under Texas law, [a]gency is the consensual relationship between two parties when
one, the agent, acts on behalf of the other, the principal, and is subject to the principal’s
control.” Akerblom v. Ezra Holdings Ltd., 848 F.Supp.2d 673, 690 (S.D. Tex. 2012)
(alteration in original) (citations omitted), aff’d, 509 Fed. Appx. 340 (5th Cir. 2013). As a
general proposition, Texas law does not presume agency, and, when claiming agency, the
alleging party has the burden of proving its existence. Buchoz v. Klein, 143 Tex. 284, 184
S.W.2d 271, 286 (1944). A principal is liable for the acts of its agent when “the agent has
actual or apparent authority to do those acts or when the principal ratifies those acts.” Spring
Garden 79U, Inc. v. Stewart Title Co., 874 S.W.2d 945, 948 (Tex. App. 1994, no writ)
(citations omitted). Actual authority arises when the principal intentionally confers authority
upon an agent, or intentionally allows the agent to believe it has authority, or by want of due
care allows the agent to believe itself to possess authority. Id. Apparent authority arises
when a principal’s conduct would lead a reasonably prudent person to believe that the agent
possessed the authority to act on behalf of the principal. See Maccabees Mut. Life Ins. Co.
v. McNiel, 836 S.W.2d 229, 232-33 (Tex. App. 1992, no writ).
In support of its agency theory, SHETC alleges:
Brinkmann and Malibu represented and has been acting as
Home Depot’s agent to order outdoor lighting and handheld
lighting products from Plaintiff. Home Depot determines
specifications of the products, the method of shipping, the entry
port for the destination and all other details in the order process.
All Brinkmann and Malibu did was to act as an agent, place the
order for Home Depot and make payments to Plaintiff. Further,
as the email in Exhibit “B” disclosed, Home Depot assigned all
proceeds payable to SHETC to Brinkmann and Malibu once the
goods got shipped, instead of paying them directly as suppliers
and vendors as Home Depot alleged.
2d Am. Compl. ¶ 18. These allegations are insufficient to plausibly plead that Malibu or
Brinkmann acted with actual or apparent authority or was otherwise subject to Home Depot’s
control. Accordingly, the court dismisses SHETC’s unjust enrichment claim.
The court now turns to SHETC’s claim for fraud and civil conspiracy.
Home Depot moves to dismiss SHETC’s claim for fraud and civil conspiracy on the
grounds that SHETC has failed to plead its fraud allegations with the particularity that Rule
9(b) requires and has failed to plead the existence of an agency relationship between Home
Depot (as principal) and Brinkmann and Malibu (as agents) such that Home Depot can be
held liable for the fraudulent acts of Brinkmann and Malibu. SHETC responds that it has
satisfied Rule 9(b) and pleaded a plausible fraud claim by alleging that Brinkmann and
Malibu are Home Depot’s agents and by “specifically assert[ing] Brinkmann’s representation
in the meeting of August, 2015 which has sufficient facts to show that Brinkmann had been
holding up SHETC’s payment from Home Depot and defrauding SHETC since late 2014.”
P. Br. 6.
“[S]tate-law fraud claims are subject to the pleading requirements of Rule 9(b).”
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338-39 (5th Cir. 2008) (citations omitted).
“Rule 9(b) imposes a heightened pleading standard for fraud claims and requires that a party
state with particularity facts supporting each element of fraud.” Turner v. AmericaHomeKey
Inc., 2011 WL 3606688, at *2 (N.D. Tex. Aug. 16, 2011) (Fitzwater, C.J.) (citing Benchmark
Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003)), aff’d, 514 Fed. Appx.
513 (5th Cir. 2013). “At a minimum, Rule 9(b) requires allegations of the particulars of time,
place, and contents of the false representations, as well as the identity of the person making
the misrepresentation and what he obtained thereby.” Id. (quoting Benchmark Elecs., 343
F.3d at 724) (internal quotation marks omitted). More colloquially, the plaintiff must plead
the “who, what, when, where, and how” of the fraud. Williams v. Bell Helicopter Textron,
Inc., 417 F.3d 450, 453 (5th Cir. 2005) (quoting United States ex rel. Thompson v.
Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997)).
Because Rule 9(b) must be “read in conjunction with [Rule] 8 which requires only a
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short and plain statement of the claim showing that the pleader is entitled to relief,”
“punctilious pleading detail” is not required. Steiner v. Southmark Corp., 734 F. Supp. 269,
273 (N.D. Tex. 1990) (Fitzwater, J.) (internal quotation marks omitted) (quoting Landry v.
Air Lines Pilots Ass’n Int’l AFL-CIO, 892 F.2d 1238, 1264 (5th Cir. 1990)). “The court’s
key concern in assessing a complaint under Rule 9(b) is to determine whether the plaintiff
seeks to redress specific wrongs or whether the plaintiff instead seeks the opportunity to
search out actionable wrongs.” Garcia v. Boyar & Miller, P.C., 2007 WL 2428572, at *4
(N.D. Tex. Aug. 28, 2007) (Fitzwater, J.) (quoting FDIC v. Gaubert, No. 3-90-1196-D, slip
op. at 7 (N.D. Tex. Sept. 4, 1990) (Fitzwater, J.)).
In Shanghai II the court held that SHETC’s fraud allegations,
read in conjunction with the balance of the amended complaint,
fail to comply with Rule 9(b). They do not specify the
particulars of time, place, and contents of the false
representations, the identity of any person making a
misrepresentation, or what the person (as opposed to Brinkmann
or Malibu) obtained thereby. The allegations refer to
Brinkmann and Malibu at a general organizational level, not to
a particular person acting within the course and scope of his
employment with Brinkmann or Malibu.
Shanghai II, 2017 WL 588656, at *7. SHETC has not cured this pleading defect in its
second amended complaint.
It alleges, inter alia, that Brinkmann and Malibu each
“represented and has been acting as Home Depot’s agent to order outdoor lighting and
handheld lighting products from Plaintiff,” 2d Am. Compl. ¶ 18, and that
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Brinkmann and Malibu, knowing that they have no means to pay
SHETC since late 2014, continued to order products for Home
Depot without disclosing such, and fraudulently induced
SHETC to continue to manufacture and to ship products to
Home Depot until August, 2015. Further, they have been using
the proceeds from Home Depot for SHETC’s goods to pay
down their own lines of credit so they can continue to operate
without filing bankruptcy. Home Depot, knowing that
Brinkmann and Malibu had been using SHETC’s proceeds to
pay down their diminishing line and their difficult financial
condition, continued to place orders through them, and assign
proceeds to them until the relationship is terminated and such
termination was never disclosed to SHETC until the August
Id. at ¶ 19. These allegations are insufficient to meet the heightened pleading requirements
of Rule 9(b). As in Shanghai II, SHETC has failed to specify the particulars of time, place,
and contents of any false misrepresentation and has failed to plead (other than at a general
organizational level) the identity of any person making a misrepresentation. Accordingly,
for the reasons explained in Shanghai II, the court dismisses SHETC’s fraud claim.
“The particularity requirement of Rule 9(b) also governs a conspiracy to commit
fraud.” In re Enron Corp. Sec., Derivative & “ERISA” Litig., 238 F.Supp.3d 799, 817 (S.D.
Tex. 2017) (citing cases); see also Hernandez v. Ciba-Geigy Corp. USA, 2000 WL
33187524, at *4 (S.D. Tex. Oct. 17, 2000) (“The weight of Fifth Circuit precedent holds that
a civil conspiracy to commit a tort that sounds in fraud must be pleaded with particularity.”).
Under Texas law, civil conspiracy requires: (1) two or more persons; (2) an object to be
accomplished; (3) a meeting of minds on the object or course of action; (4) one or more
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unlawful, overt acts; and (5) damages as the proximate result. Apani Sw., Inc. v. Coca-Cola
Enters., Inc., 300 F.3d 620, 635 (5th Cir. 2002) (quoting Massey v. Armco Steel Co., 652
S.W.2d 932, 934 (Tex. 1983)). SHETC has failed to plead its civil conspiracy claim under
either the heightened pleading requirements of Rule 9(b) or the pleading standard of Rule
SHETC’s civil conspiracy allegations consist of the following paragraph:
Home Depot, Malibu and Brinkmann, acted in concert and
conspired together to commit the tortious acts described herein.
Accordingly, Home Depot should be held jointly and severally
liable for Plaintiff’s damages as a result of their actions.
Alternatively, Home Depot, as the principal, should be liable for
the action of its agents Brinkmann and Malibu.
2d Am. Compl. ¶ 20. SHETC has failed to plead, other than in conclusory terms, the
elements required for a civil conspiracy claim. For example, the allegation that Home Depot
on the one hand, and Malibu and Brinkmann on the other hand, “conspired together” does
not plausibly allege a meeting of the minds, which requires an “intent to participate in the
purpose of the conspiracy.” Miller v. Am. Int’l Grp., Inc., 2006 WL 740936, at *3 (N.D. Tex.
Mar. 14, 2006) (Solis, J.) (quoting Chevalier v. Animal Rehab. Ctr., 839 F. Supp. 1224, 1230
(N.D. Tex. 1993) (Kendall, J.)); see also Wackman v. Rubsamen, 602 F.3d 391, 408 (5th Cir.
2010) (“Civil conspiracy requires ‘specific intent’ to agree ‘to accomplish an unlawful
purpose or to accomplish a lawful purpose by unlawful means.’ ‘The parties must be aware
of the harm or wrongful conduct at the inception of the combination or agreement.’” (quoting
Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996); Triplex Commc’ns, Inc. v Riley, 900
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S.W.2d 716, 719 (Tex. 1995))). Assuming arguendo that SHETC plausibly alleged that the
object of the conspiracy was to defraud SHETC, SHETC has not alleged that Home Depot
had an intent to agree to participate in this purpose. Accordingly, for at least this reason, the
court grants Home Depot’s motion to dismiss this claim.
The court now considers Home Depot’s motion to dismiss SHETC’s request for
disclosure under Tex. R. Civ. P. 194, its claim for attorney’s fees under Tex. Civ. Prac. &
Rem. Code Ann. § 38.001, and its claim for constructive trust. In response, SHETC does not
address Home Depot’s contentions that Tex. R. Civ. P. 194 does not apply in federal court
and that SHETC’s constructive trust claim must be dismissed because it is merely a remedy
for SHETC’s unjust enrichment claim. SHETC does maintain, however, that it is entitled to
recover attorney’s fees.
As it did in Shanghai II, the court dismisses SHETC’s request for disclosure under
Tex. R. Civ. P. 194 because it is a Texas procedural rule, and SHETC has made no attempt
to explain how it applies in federal court. Shanghai II, 2017 WL 588656, at *7.
Under Texas law, “[a] constructive trust is an equitable remedy used to prevent unjust
enrichment.” Baxter v. PNC Bank Nat’l Ass’n, 541 Fed. Appx. 395, 398 (5th Cir. 2013) (per
curiam) (citing Everett v. TK-Taito, LLC, 178 S.W.3d 844, 859 (Tex. App. 2005, no pet.)).
“A constructive trust is not a cause of action under Texas law.” In re Moore, 608 F.3d 253,
263 (5th Cir. 2010). Accordingly, because the court is dismissing SHETC’s unjust
enrichment claim, it also dismisses SHETC’s constructive trust cause of action as a claim
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against Home Depot.
The court dismisses SHETC’s claim for attorney’s fees because its other claims are
being dismissed, so there is no predicate claim that has survived and supports a fee award.
In its response, SHETC requests that if the court determines that its pleadings do not
sufficiently allege a factual basis to support the challenged causes of actions as pleaded,
SHETC be given another opportunity to amend its pleadings. The determination whether to
grant leave to replead is a matter within this court’s discretion. See, e.g., ABC Arbitrage
Plaintiffs Grp. v. Tchuruk, 291 F.3d 336, 362 (5th Cir. 2002). The court has already afforded
SHETC two opportunities to rectify the defects in its complaint. Although in Shanghai I the
court dismissed SHETC’s cause of action, it permitted SHETC to replead, in part because
courts typically allow plaintiffs at least one opportunity to replead after identifying defects
in a complaint. See Shanghai I, 2016 WL 5815896, at *4. In Shanghai II the court permitted
SHETC to replead because two of its claims were being dismissed for the first time, and
SHETC had gotten closer to pleading a claim for quantum meruit. Shanghai II, 2017 WL
588656, at *7. This time, however, SHETC has already had two fair opportunities to plead
sufficient facts in support of its claims and has offered no persuasive reason to conclude that,
if afforded still another opportunity to amend, a revised complaint would yield a different
outcome. The court in its discretion therefore denies SHETC’s request for leave to replead
yet again. See ABC Arbitrage, 291 F.3d at 362 (concluding that district court did not abuse
its discretion by denying leave to replead where court had already given plaintiffs one
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opportunity to do so).
Accordingly, for the reasons explained, the court grants Home Depot’s motion to
dismiss and dismisses this action against with prejudice by judgment filed today.
September 12, 2017.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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