plaintiff's opposition to motion to dismiss 9.18 test
TRANSCRIPT
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Joseph R. Manning, Jr., Esq. (State Bar No. 223381)THE LAW OFFICES OF JOSEPH R. MANNING, JR.A PROFESSIONAL CORPORATION450 Newport Center Drive, Ste. 200Newport Beach, California 92660(949) 285-4532(866) 843-8308Email: [email protected] for PLAINTIFF GROUP ISO, INC.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
GROUP INDEPENDENT SALES ORGANIZATION, INC., A Nevada corporation Plaintiff,
vs.
GLOBAL ISO, LLC, A Nevada limited liability company, and DANIEL BRASOV, IRASEMA BRASOV, and WENDY CARILLO, Individuals, and DOES 1 through 10, inclusive.
Defendants.
CASE NO. SACV 08-00703AHS (Shx)____
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [F.R.C.P. 12(B)(6)], IMPROPER VENUE [F.R.C.P. 12(B)(1), (3), (6), AND 28 U.S.C. § 1406(A)], OR, ALTERNATIVELY, TO COMPEL ARBITRATION [F.R.C.P. 12(B)(1), (2), (3), (6), OR ALTERNATIVELY, MOTION TO STRIKE PORTIONS OF THE “CORRECTED COMPLAINT” UNDER RULE 12(F) AND FOR A MORE DEFINITE STATEMENT [F.R.C.P. 12(E)
[Filed concurrently with Objection to Defendants’ Request for Judicial Notice] Date: October 6, 2008Time: 10:00 a.m.Judicial Officer: The Honorable Alicemarie Stotler
1PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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TO DEFENDANTS AND TO THEIR ATTORNEYS OF RECORD:
Plaintiff, Group Independent Sales Organization, Inc. doing business as
GROUP ISO ("GROUP ISO"), (sometimes referred to herein as "Plaintiff")
hereby opposes Defendants Global ISO LLC ("GLOBAL ISO"), Daniel Brasov
("BRASOV"), Irasema Brasov and Wendy Carillo’s (collectively referred to
herein as "Defendants") Motion to Dismiss, or in the alternative, Motion to
Compel Arbitration, or in the alternative, Motion to Strike and for a More
Definite Statement, as follows:
2PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Defendants attempt to paint Plaintiff “overly disgruntled” and
characterize Plaintiff as engaging in “protracted and multiplicitous bad-faith
litigation” and “vexatious litigation tactics” against Defendants in attempt to
drive Defendants out of business. (Motion to Dismiss, at 1:15, 17-19, and 27)
Apparently unconcerned about losing credibility with the Court right out of the
gate, Defendants fail to mention at the same time that in the prior litigation or
arbitration proceedings between the parties, in each case (there are 2),
Defendants either initiated the action, or in the case of the arbitration,
Defendants stipulated to arbitrate selected matters.
Furthermore, and consistent with the Defendants’ arguments so far in this
case, Defendants fail to mention anywhere in the Motion to Dismiss that the
release executed by the parties at the conclusion of the state court case
contained an express limitation that clearly places the present action outside
the scope of the release – despite the fact that it was discussed by counsel in
detail when counsel met and conferred prior to the time when Defendants filed
this motion.
3PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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As it concerns Defendants’ claim that Plaintiff failed to comply with
Local Rule 83-1.3.1, Plaintiff understands that rule to apply to actions filed or
pending in the Federal District Court for the Central District of California. As
no such claims exist, no Notice of Related Cases was filed by Plaintiff.
Succinctly put, as discussed fully in this Opposition, Defendants motion
is based on a twisted, selective and disingenuous interpretation of the prior
litigation between the parties and of the Settlement and Release Agreement
between the parties and should be denied.
Should the Court deem the Settlement and Release Agreement
appropriate for consideration at this stage of the proceedings, and in the context
of this motion, by virtue of Judicial Notice or otherwise, Plaintiff is confident
that a faithful reading of the plain text of the release will expose each of
Defendants’ contentions asserted in support of the Motion to Dismiss as
completely without foundation.
It should be noted that Plaintiff does concede that the Fourth Cause of
Action is based on a statute repealed in 2008 and therefore, as pled, fails to state
a claim. It is for this reason that, as to that cause of action alone, Plaintiff does
not oppose the motion to dismiss and instead asks only for leave to amend to
4PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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reflect the newly-enacted statute. A stipulation to this effect has been executed
and filed by the parties as required by Local Rule 7-1.
Accordingly, Plaintiff respectfully requests that the Court deny
Defendants’ Motion. To the extent that the Court is inclined to grant the
motion, Plaintiff requests that the Court provide it with leave to amend the
Complaint.
II. DEFENDANTS’ CLAIMS FOR DISMISSAL ARE
WITHOUT MERIT
In ruling on a motion to dismiss, the Court must accept all material
allegations of fact alleged in the complaint as true and resolve all doubts in
favor of Plaintiff. (Pareto v. F.D.I.C., 139 F. 3d 696, 699 (9th Cir. 1998)). As
such, “[t]he motion to dismiss for failure to state a claim is viewed with
disfavor and is rarely granted.” (Gilligan v. Jamco Develop. Corp., 108 F. 3d
246, 249 (9th Cir. 1997)(emphasis in original)) Finally, a complaint need not set
forth all relevant facts or recite the law, all that is required is a short and plain
statement showing the party is entitled to relief. (Fed. R. Civ. P. 8(a)(2)) Here,
Plaintiff has met the requirements for pleading.
5PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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A. THE SETTLEMENT AND RELEASE AGREEMENT IS
NOT PROPERLY CONSIDERED IN THE CONTEXT OF
THIS MOTION
Defendants’ argument that the Settlement and Release Agreement may
be considered by the Court pursuant to the “incorporation by reference”
doctrine is premised essentially on the argument that the release is a
“dispositive document on which [the complaint] relied.” (Motion to Dismiss, at
9:25-27 citing Pension Benefit Guar. Corp. v. White Consolidated Industries,
Inc. 998 F. 2d 1192, 1196 (3rd Cir. 1993)) That however, is not the case.
Indeed, Plaintiff’s claims do not rely on any release. Defendant conveniently
ignores that Federal Rule of Civil Procedure, 8(c)(1) defines “release”, and
“waiver” for that matter, as affirmative defenses. Each of these affirmative
defenses are matters that, by definition, raise new facts that if true would bar a
complaint, even if the allegations of the complaint are true. (Saks v. Franklin
Covey Co. 316 F. 3d 337, 350 (2nd Cir. 2003)) Again therefore, by definition, the
presence or absence of a release or of waiver is not something upon which
Plaintiff relied to plead its case in the Complaint.
Beyond that, the Settlement and Release Agreement referenced by
Defendant is not mentioned or alleged in the Complaint. The sole, indirect,
6PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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reference to the prior litigation in the Complaint (and not to the Settlement and
Release Agreement) is in paragraph 23 where it states that “Plaintiff and
Defendant previously resolved certain infringing actions[.]” (Complaint, at 8, ¶
23) This reference is not a fact, or “dispositive document,” upon which the
Complaint relies. This indirect reference to resolution of “certain infringing
actions” also does not meet the standard set forth in the Ninth Circuit in Branch
v. Tunnel (9th Cir. 1994) 14 F. 3d 449, 454 (overruled on other grounds in
Galbraith v. County of Santa Clara (9th Cir. 2002) 307 F. 3d 1119, 1127), a case
relied upon by Defendants, but one that does not support their arguments. The
Branch court stated “we hold that documents whose contents are alleged in a
complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered in ruling on a Rule 12(b)
(6) motion to dismiss.” Branch (9th Cir. 1994) 14 F. 3d 449, 454 (emphasis
added). Again, the contents of the Settlement and Release Agreement are not
alleged in the Complaint, nor do they need to be to state a claim. Accordingly,
the Court should decline to invoke the “incorporation by reference” doctrine in
this case, as it clearly does not apply.
B. THE COMPLAINT SEEKS RELIEF EXPRESSLY OUTSIDE
THE SCOPE OF THE RELEASE
7PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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If the Court reaches the text of the Settlement and Release Agreement it
will find the following:
5. Release. (a) For good and valuable consideration, the Parties hereto,
for themselves and for each of their respective principals, agents,
partners, joint venturers, affiliates, subsidiaries, parent and affiliated
corporations, insurers, representatives, beneficiaries, successors,
grantees, vendees, transferees, and assigns, hereby fully and irrevocably
releases, acquits, and discharges each other, and their respective past,
present, and future directors, officers, employees, agents, partners, joint
venturers, affiliates, representatives, insurers, attorneys, subsidiaries,
parent and affiliated corporations and/or other entities, predecessors,
successors, beneficiaries, grantees, vendees, transferees, and assigns
(hereinafter, collectively the “Related Persons”) of and from any and all
liabilities, claims, cross-claims, causes of action, damages, costs
(including costs of suit and attorney’s fees and expenses), or demands, of
whatever nature, character, type, or description, whether known or
unknown, existing or potential, or suspected or unsuspected, which the
Parties hereto, and each of them, have or assert, or may hereafter have or
8PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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assert, against each other, or against any of the Related Persons by
reason of any act or omission on the part of the Parties hereto, or on
the part of any of the Related Persons, occurring at any time prior to
the Effective Date of the Agreement (as defined below), which
liabilities, claims, causes of action, damages, costs, or demands of
whatever nature, character, type, or description are based upon, arise out
of, are alleged in or could have been alleged in, or relate in any way to
the Action or Cross-Action.
Settlement and Release Agreement, ¶5(a).
Paragraph 5 of the Settlement and Release, contains the text of the
release itself. To paraphrase, the release operates to release the following
persons and claims:
1) The Parties and related Persons;
2) For all claims; arising,
3) By reason of any act or omission on the part of the Parties
occurring at any time prior to the Effective Date of the Agreement.
The Settlement and Release Agreement further contains a California
Code of Civil Procedure, Section 1542 waiver, which by definition operates to
9PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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waive the rights afforded under that section. That section reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
By definition, a waiver of Code of Civil Procedure, Section 1542
operates to modify the release. The modification accomplished by the waiver is
to increase the scope of the release in derogation of Code of Civil Procedure,
Section 1542. The waiver of Code of Civil Procedure, Section 1542 does not
modify the temporal limitation expressly included in the release which limits
the effect of the release to claims that may be asserted “by reason of any act or
omission on the part of the Parties hereto, or on the part of any of the Related
Persons, occurring at any time prior to the Effective Date of the Agreement.”
Further, in recognition of this, the paragraph containing the waiver of Section
1542 acknowledges that it is subject to the terms and conditions of the
Agreement, which include the Release found in Section 5(a):
10PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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Subject to the terms and conditions of Agreement, each of the Parties
hereto expressly waives the benefit of California Civil code Section
1542, which is set forth below.
(Settlement and Release Agreement, ¶5(b)) The Complaint is outside the scope
of the release as it seeks redress for infringing conduct occurring after the
Effective Date as further described in C. below
C. APPLICATION OF THE RELEASE
By its express terms the release in this matter contains an explicit time
restriction on its scope such that it is limited to claims that are asserted “by
reason of any act or omission on the part of the Parties hereto, or on the part of
any of the Related Persons, occurring at any time prior to the Effective Date
of the Agreement.” (Settlement and Release Agreement, ¶5(a)) The release at
issue in this matter is virtually identical to the release at issue in Applied
Genetics International, Inc. v. First Affiliated Securities, Inc.. 912 F.2d 1238
(10th Cir. 1990).
The Applied Genetics Court addressed the issue of whether a grant of
summary judgment barring claims that arose after an express time limitation
contained in a release that otherwise contained broad language, including
11PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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language that could be interpreted as prospective. The exact language of that
release is as follows:
AGI hereby fully and forever remises, releases and discharges AFC and
FAS . . . from any and all claims, known or unknown, suspected or
unsuspected, of whatever kind or nature, in law, equity or otherwise,
which it has, had, may have had, or hereafter can, shall or may have
against the FAS Releasees for or by reason of any fact, matter, contract,
right, law, circumstance, cause or thing to and including the date hereof
arising out of or pertaining in any way to the Underwriting Agreement
and the Oral Agreement.
(Applied Genetics International, Inc. (10th Cir. 1990) 912 F.2d 1238, 1240)
The Applied Genetics Court reversed the grant of summary judgment,
stating:
POST-SETTLEMENT CLAIMS
Granting summary judgment on the issue of the post-settlement claims
was also error. Relying on the language that AGI "released and
12PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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discharged AFC and FAS . . . from any and all claims . . . arising out of
or pertaining in any way to the Underwriting Agreement," the district
court found that the release was definite and clearly stated the parties'
intention to bar all claims no matter when they arose. However, the court
neglected to interpret the phrase "to and including the date hereof" which
provides an explicit time restriction on the scope of the Settlement and
Release Agreement. In general, a release only covers matters expressed
therein which are in existence at the time the release is executed and does
not cover subsequent claims. See, e.g., In re Vehm Eng'g Corp., 521 F.2d
186, 188 (9th Cir. 1975) (citing 76 C.J.S. Release § 53) (release from "all
claims of any kind, nature and description, known or unknown, from the
beginning of the world to date" did not cover subsequent claim);
Broadview Chemical Corp. v. Loctite Corp., 406 F.2d 538, 541 (2d Cir.),
cert. denied, 394 U.S. 976, 22 L. Ed. 2d 755, 89 S. Ct. 1472 (1969). …
… …
Here, the phrase "to and including the date hereof" limits the scope of the
release to claims arising prior to, or contemporaneously with, the
execution of the release. Because "claim" is defined to include "contract"
as well as claims and causes of action, the Settlement and Release
13PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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Agreement releases FAS from any contractual obligation it may have
owed to AGI prior to the date of the release as well as any other causes of
actions that may have arisen prior to that time. However, causes of action
or contractual obligations that arise after the date of the release are, by
the terms of the Settlement and Release Agreement, not released.
Therefore, summary judgment is not proper as to the issue of post-
settlement claims.
(Applied Genetics International, Inc. (10th Cir. 1990) 912 F.2d 1238, 1245
(emphasis added.))
The same analysis applies in this case where the release at issue also
contains an explicit time restriction. Given the express and explicit time
restriction contained in the Settlement and Release Agreement, and in particular
in the context of this disfavored motion where all doubts are resolved in favor
of the Plaintiff, Plaintiff urges the Court to deny the motion to dismiss.
III. THE AGREEMENT TO ARBITRATE IN THE
SETTLEMENT AND RELEASE AGREEMENT IS LIMITED
IN SCOPE AND DOES NOT EMBRACE THE ISSUES
RAISED IN THE COMPLAINT
14PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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In keeping with Defendant’s twisted, selective and disingenuous
interpretation of the prior litigation between the parties and of the Settlement
and Release Agreement between the parties, Defendant completely
misrepresents the scope of the agreement to arbitrate between the parties in
seeking an order to compel arbitration of this dispute. (Motion to Dismiss, at
16-17) Particularly telling in this regard is the fact that Defendant does not
quote the paragraph of the Settlement and Release Agreement that contains the
stipulation to arbitrate between the parties. (Settlement and Release
Agreement, ¶4)
That paragraph reads as follows:
4. Agreement to arbitrate. The Parties hereto acknowledge that they are
unable to agree as to the resolution of the Cross-complainant Group
Independent Sales Organization, Inc.’s claim to ownership of the uniform
resource locator (“URL”) commonly known as www.GISO.com (“the
URL”) and further as to Group Independent Sales Organization, Inc.’s
claim of right to the trademark – “GISO” with all the rights due the
holder of that trademark. Accordingly, the Parties hereto agree to submit
the issue of the entitlement to ownership and control of the URL and
15PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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Trademark rights (pertaining to “GISO”) to binding arbitration in Orange
County, California at JAMS in Orange County pursuant to its
Comprehensive Arbitration Rules and Procedures. Claims to the URLs
contained in Exhibit “B” hereto shall be also addressed through binding
arbitration in the same manner and in the same proceeding as GISO.com.
Arbitration shall be commenced, if at all, within six (6) months from the
date of the Agreement. The Parties hereto shall promptly select an
arbitrator. If the parties are unable to select an arbitrator, the Court shall
select an arbitrator pursuant to its power to enforce the terms of the
Agreement as requested by the Parties hereto pursuant to Code of Civil
Procedure section 664.6. The arbitrator may, in the award, allocate all or
part of the costs of arbitration, including the fees of the arbitrator and the
reasonable attorney’s fees of the prevailing party. Judgment on the
award may be entered in any court having jurisdiction. The Parties
hereto intend the Release contained in paragraph 5 below to be subject to
the agreement to arbitrate contained in this paragraph 4.
The parties agree through this arbitration process to address and dispose
of all present claims, pertaining to URL’s on Exhibit B, which might be
16PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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brought in either the state or federal courts or any other court of
competent jurisdiction.
The parties to this agreement shall state their consent to arbitrate the
disputes referred to in this section of the Agreement by signing the
Stipulation for Arbitration which is Addendum “A” to this Agreement.
(Settlement and Release Agreement, ¶4)
The Stipulation to Arbitrate referenced in paragraph 4 above, states:
IT IS STIPULATED AND AGREED by the Parties to this Settlement
and Release Agreement to submit all disputes, claims and controversies
over the ownership and use of the URL’s, contained in Exhibit B to this
agreement, to neutral, binding arbitration at JAMS of Orange County,
California, pursuant to the JAMS Administrative Policies and, unless
otherwise agreed to in writing by the parties, to the applicable JAMS
Arbitration Rules and Procedures. The Parties hereby agree to give up
any rights they might possess to have this matter litigated in a court or
jury trial.
17PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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(Settlement and Release Agreement, Addendum “A”)
A plain reading of the “Agreement to arbitrate” makes clear that this
agreement is limited to “ownership of the uniform resource locator (“URL”)
commonly known as www.GISO.com (“the URL”) and further as to Group
Independent Sales Organization, Inc.’s claim of right to the trademark –
“GISO” with all the rights due the holder of that trademark.” (Id. at ¶4.) In
light of this, the parties “agree to submit the issue of the entitlement to
ownership and control of the URL and Trademark rights (pertaining to “GISO”)
to binding arbitration in Orange County, California.” (Id. at ¶4.)
The Complaint in this action does not mention the GISO service mark or
seek relief related to same. Further, the Complaint does not seek relief related
to the GISO uniform resource locator or mention the same. These are the issues
the parties agreed to arbitrate. The relief sought in the Complaint relates to the
“GROUP ISO” service mark. That mark is not referenced in any manner in the
Agreement to Arbitrate or the Stipulation to Arbitrate above. The GROUP ISO
mark is a separate and distinct federally registered mark for which Plaintiff
obtained registration In November 2007, after the September 2007 Release and
Settlement Agreement was executed by the parties.
18PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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Defendants have no basis for their assertion that “Group ISO Agreed to
Arbitrate Future Trademark Right Claims.” (Motion to Dismiss, at 6:13)
Further, Defendants deliberately quote from the Settlement and Release
Agreement in a misleading manner when they quote from the Agreement to
Arbitrate, but omit key words to alter the apparent meaning of the agreement.
[t]he Parties hereto agree to submit the issue of the entitlement to
ownership and control of the … Trademark rights … to binding
arbitration[.]
(Motion to Dismiss, at 6:19-21)
The actual language from the Agreement to Arbitrate clearly limits any
arbitration of Trademark rights to right related to the mark GISO. First, the
trademark rights at issue in any arbitration are identified as “Group Independent
Sales Organization, Inc.’s claim of right to the trademark – “GISO” with all the
rights due the holder of that trademark.” (Settlement and Release Agreement,
¶4) Next, and consistent with the limitation to the GISO mark, the parties
agreed to arbitrate “Trademark rights (pertaining to “GISO”).” (Id.) As a
result, Defendants’ motion to compel arbitration must fail because the
19PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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Agreement to Arbitrate clearly does not embrace the current action and the
infringement claims of Group ISO related to its GROUP ISO mark.
IV. THE COMPLAINT RELATES TO CONDUCT EXPRESSLY
EXCLUDED FROM THE SCOPE OF THE RELEASE AND
THE AGREEMENT TO ARBITRATE; THE PRESENT
VENUE IS THE PROPER VENUE; THE STATE COURT
LACKS SUBJECT MATTER JURISDICTION
Venue is proper in this matter is proper in the Central District of
California, pursuant to 28 U.S.C. '1391(b), and (c). Here, Defendants seek to
convert this action into one to enforce the terms of the Settlement and Release
Agreement. That is not the gravamen of this action. This action seeks damages
and equitable relief for various acts and omissions of the Defendants that are
outside the express terms of the Settlement and Release Agreement and its
Agreement to Arbitrate. (Settlement and Release Agreement, ¶4 and Addendum
“A”). The only potential relevance of the Settlement and Release Agreement to
the present action is whether Defendants will, at the appropriate time; attempt to
assert its release as an affirmative defense to the Complaint.
Further, Defendants conveniently fail to point out that a motion to
enforce the Settlement Agreement to California Code of Civil Procedure
20PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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Section 664.6 was clearly not intended by the Parties to vest jurisdiction in the
state court. Indeed, the Settlement and Release Agreement calls for the
dismissals with prejudice of the action and cross-action. (Settlement and
Release Agreement, ¶1 and 2). The impact of such a dismissal is clear, it
deprives the court of subject matter jurisdiction, and a motion under California
Code of Civil Procedure Section 664.6 will not lie. Viejo Bancorp, Inc. v.
Wood (1989) 217 Cal. App. 3d 200, 265 Cal. Rptr. 620. Accordingly, venue
here does not lie with the state court and the motion to dismiss for improper
venue must be denied.
V. THE SCOPE OF THE ARBITRATION AGREEMENT IS
CLEAR AND THIS ACTION IS OUTSIDE THAT SCOPE;
THE STATE COURT HAS NO JURISDICTION AND IS
NOT AN AVAILABLE FORUM AFTER DISMISSAL AS
REQUIRED BY THE SETTLEMENT AGREEMENT
As discussed in detail above, the California Code of Civil Procedure
Section 664.6 clause was not a forum selection clause and the state court lacks
subject matter jurisdiction after the dismissals with prejudice contemplated in
the Settlement and Release Agreement. (See supra § IV) In the case of the
Arbitration Agreement, its scope is clearly limited to matters not addressed in
21PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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the Complaint. (See supra § III) Accordingly, the motion to dismiss based on
failure to observe a forum selection clause must be denied.
VI. THE MOTION TO STRIKE
This section addresses the items Defendants request that the Court Strike
from the Complaint in the order that they are raised in the Defendants’ Motion.
(Motion to Dismiss, at ¶G) Plaintiff urges the Court to deny the motion as
except as to those items or categories to which there is no opposition. As to the
unopposed items or categories, Plaintiff will discuss entry of a Stipulation to
Strike and/or to Amend with Defense counsel pursuant to Local Rule 7-1.
A. ACCOUNTING
The Ramona Manor Convalescent Hosp. v. Care Enteprises (1986) 177
Cal. App. 3d 1120, 225 Cal. Rptr. 120 case does not support the proposition for
which it is cited. This case does not discuss the issue of whether an accounting
is available and the motion to strike must be denied on this issue.
B. ATTORNEYS’ FEES
Plaintiff requests leave to amend to seek attorneys’ fees as allowed by
law.
C. UNFAIR TRADE PRACTICES REMEDIES
22PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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Plaintiff requests leave to amend the Complaint as to the Third Cause of
Action for Unfair Trade Practices to seek remedies as allowed by law.
D. NEGLIGENT INTERFERENCE
Plaintiff requests leave to amend to seek remedies as allowed by law.
VII. THE MOTION FOR MORE DEFINITE STATEMENT IS
DISFAVORED AND MUST BE DENIED
The Complaint exceeds the standard for pleading set forth in Fed. R. Civ.
P. 8(a)(2) which requires only a short and plain statement showing the party is
entitled to relief. Further, this motion is disfavored and rarely granted. (In re
American Int’l. Airways, Inc. (ED PA 1986) 66 BR 642, 645) The conclusory
nature of this part of the motion, lacking any detail or analysis, also indicates
that it is made only as boilerplate, that it is not worthy of substantial
consideration, and should be denied.
DATED: September 18, 2008 Law Offices of Joseph R. Manning, Jr.A PROFESSIONAL CORPORATION
_________________________________
By:__________________________ JOSEPH R. MANNING JR.
Attorneys for PlaintiffGROUP INDEPENDENT SALES
23PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
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ORGANIZATION, INC. dba GROUP ISO
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