United States District Court, D. Hawaii
ORDER GRANTING THE KLOSTERMAN DEFENDANT'S SECOND
MOTION TO DISMISS THE FIRST AMENDED COMPLAINT
C. Kay Sr. United States District Judge
reasons set forth below, the Court GRANTS the Klosterman
Defendants' Second Motion to Dismiss, ECF No. 18.
Court dismisses Counts 1 and 2 as to the Klosterman
Defendants in the FAC WITHOUT PREJUDICE.
approximately July 11, 2003, Defendants Marianne Klosterman
and Klaus P. Klosterman (“Klosterman
Defendants”), on behalf of Galaxy Aquatics, Inc.
(“Galaxy” and together with the Klosterman
Defendants, “Defendants”), applied for a business
loan line of credit (the “Application”) with
Wells Fargo Bank, N.A. (“Wells Fargo” or
“Plaintiff”). First Amended Complaint
(“FAC”) ¶ 8. Within the Application, there
was a section entitled “Agreement and Personal
Guarantee” in which the Klosterman Defendants agreed to
“jointly and severally unconditionally guarantee and
promise to pay [Wells Fargo] all indebtedness of [Galaxy] at
any time arising under or relating to any credit requested
through this application, as well as any extensions,
increases or renewals of that indebtedness.”
Id. ¶¶ 10-11.
Fargo tendered performance according to the Application by
advancing funds to Galaxy. Id. ¶ 13. On
approximately November 4, 2013, Galaxy defaulted by failing
to make the required payment due under its business line of
credit account. Id. ¶ 14.
approximately August 14, 2014, Wells Fargo made separate
demands of Galaxy and each of the Klosterman Defendants to
make full payment of the amount due under the business line
of credit account. Id. ¶ 17. Despite these
demands, Defendants have failed to pay such sums.
Id. ¶ 18. Currently, the amount due is $75,
679.34. Id. ¶ 16.
20, 2017, Plaintiff filed its Complaint against Defendants
alleging claims for breach of contract and quantum meruit.
ECF No. 1. On August 16, 2017, the Klosterman Defendants
filed a Motion to Dismiss for Failure to State a Claim. ECF
No. 14. On September 6, 2017, in response to the Motion to
Dismiss, Plaintiff filed the FAC, which also alleges claims
for breach of contract and quantum meruit. ECF No. 16.
September 20, 2017, the Klosterman Defendants filed a Second
Motion to Dismiss for Failure to State a Claim Against
Defendants Marianne and Klaus P. Klosterman
(“Motion”). ECF No. 18. On October 6, 2017,
Plaintiff filed an Opposition to the Motion. ECF No. 21. On
October 16, 2017, the Klosterman Defendants filed a Reply.
ECF No. 25. The Court held a hearing on the Motion on
October 30, 2017.
Rule of Civil Procedure 12(b)(6) authorizes the Court to
dismiss a complaint that fails “to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Rule 12(b)(6) is read in conjunction with Rule 8(a), which
requires only “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The Court may dismiss a complaint
either because it lacks a cognizable legal theory or because
it lacks sufficient factual allegations to support a
cognizable legal theory. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
resolving a Rule 12(b)(6) motion, the Court must construe the
complaint in the light most favorable to the plaintiff and
accept all well-pleaded factual allegations as true.
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d
777, 783 (9th Cir. 2012). The complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The plausibility standard . . . asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint
pleads facts that are ‘merely consistent with' a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557).
the Court dismisses a complaint pursuant to Rule 12(b)(6) it
should grant leave to amend unless the pleading cannot be
cured by new factual allegations. OSU ...