Two Guys, Inc. v. Nick-N-Willy's Franchise Co., LLC et al

Filing 13

ORDER by Judge Benjamin H Settle granting 8 Motion to Dismiss.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TWO GUYS, INC., a Washington
Corporation, a.k.a. FRANCHISE
INFUSION, INC.,
Plaintiff,

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v.
NICK-N-WILLY’S FRANCHISE
COMPANY, LLC, a Colorado limited
liability company; and RICHARD WEIL,
a Colorado resident,

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ORDER GRANTING
DEFENDANTS’ MOTION TO
DISMISS

Defendants.

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CASE NO. C11-5537BHS

This matter comes before the Court on Defendants Nick-N-Willy’s Franchise
Company, LLC, and Richard Weil’s (“Defendants”) motion to dismiss, compel
mediation, or to transfer venue (Dkt. 8). The Court has reviewed the briefs filed in

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support of and in opposition to the motion and the remainder of the file and hereby grants
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the motion to dismiss for the reasons stated herein.
I. PROCEDURAL HISTORY

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On March 25, 2011, Plaintiff Two Guys, Inc., a.k.a. Franchise Infusion, Inc. (“Two

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Guys”) filed a complaint against Defendants in Clark County Superior Court for the State

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of Washington. Dkt. 1, ¶ 1. Two Guys seeks rescission of an Area Developer Marketing

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ORDER - 1

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Agreement (“ADM”), which includes a provision that requires mediation before a legal

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action may be filed. Dkt. 9, Declaration of Richard J. Whittemore, Exh. 1, § 19.2.

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On July 14, 2011, Defendants removed the matter to this Court. Dkt. 1.

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On July 21, 2011, Defendant filed a motion to dismiss, compel mediation, or to

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transfer venue. Dkt. 8. On September 7, 2011, Two Guys responded. Dkt. 11. On
September 9, 2011, Defendants replied. Dkt. 12.

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II. DISCUSSION
Motions to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil

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Procedure may be based on either the lack of a cognizable legal theory or the absence of
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sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Department, 901
F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the
complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295, 1301

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(9th Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed

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factual allegations but must provide the grounds for entitlement to relief and not merely a

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“formulaic recitation” of the elements of a cause of action. Bell Atlantic Corp. v.

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Twombly, 127 S. Ct. 1955, 1965 (2007). Plaintiffs must allege “enough facts to state a

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claim to relief that is plausible on its face.” Id. at 1974.

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In this case, the ADM explicitly requires mediation before any party may file a

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legal action under the agreement. Two Guys has failed to allege that they participated in

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mediation. Therefore, the complaint lacks a cognizable legal theory for breach of

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contract.

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With regard to Two Guys’ response brief, the request to remand the matter back to
state court is meritless for numerous reasons. The request is also improperly presented in
a responsive brief. Therefore, the Court denies Two Guys’ request to remand.

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ORDER - 2

III. ORDER

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Iit is hereby ORDERED that Defendants’ motion to dismiss, compel mediation, or

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to transfer venue (Dkt. 8) is GRANTED and this action is DISMISSED. The Clerk is

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directed to enter judgment for Defendants.

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DATED this 3rd day of October, 2011.

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A

BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3