Hellenic Petroleum LLC v. Mansfield Oil Company of Gainsville, Inc.

• Court: District Court, E.D. California
• Decided: January 28, 2020
• Docket: 1:19-cv-01071
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HELLENIC PETROLEUM LLC, No. 1:19-cv-01071-DAD-SKO 12 Plaintiff, 13 v. ORDER GRANTING PLAINTIFF/COUNTER-DEFENDANT AND 14 MANSFIELD OIL COMPANY OF THIRD-PARTY DEFENDANT’S MOTION GAINESVILLE, INC. and MARGIE TO DISMISS COUNTERCLAIMS AND 15 LANG, THIRD-PARTY COMPLAINT 16 Defendants. (Doc. No. 15) 17 MANSFIELD OIL COMPANY OF GAINESVILLE, INC., 18 Counter-Plaintiff and 19 Third-Party Plaintiff, 20 v. 21 HELLENIC PETROLEUM LLC, 22 Counter-Defendant, 23 and 24 PANAGIOTIS KECHAGIAS and DOES 1–20, 25 Third-Party Defendants. 26 27 This matter is before the court on plaintiff/counter-defendant Hellenic Petroleum LLC 28 (“Hellenic”) and third-party defendant Panagiotis Kechagias’s (“Kechagias”) motion to dismiss 1 defendant/counter-plaintiff/third-party plaintiff Mansfield Oil Company of Gainesville, Inc.’s 2 (“Mansfield”) counterclaims and third-party complaint. (Doc. No. 15.) A hearing on the motion 3 was held on January 22, 2020. Attorney Brian Andrew Paino appeared telephonically on behalf 4 of Hellenic and Kechagias, and attorney John Thomas Gilbert appeared telephonically on behalf 5 of Mansfield. The court has considered the parties’ briefs and oral arguments and, for the reasons 6 set forth below, will grant the pending motion to dismiss with leave to amend. 7 BACKGROUND 8 On August 2, 2019, Hellenic initiated this action by filing suit against Mansfield and 9 defendant Margie Lang (“Lang”). (Doc. No. 1 (hereinafter, the “Hellenic complaint”).) In its 10 complaint Hellenic alleges that Mansfield and Lang, in her capacity as a Mansfield employee, 11 negligently and intentionally interfered with Hellenic’s contractual and prospective economic 12 relations and engaged in unlawful, unfair, or fraudulent business practices.1 (Id. at 3–7.) On 13 October 16, 2019, Mansfield filed, in a single filing, its answer to the Hellenic complaint as well 14 as counterclaims and a third-party complaint against Hellenic and Kechagias, respectively. (Doc. 15 No. 11 (hereinafter, the “Mansfield complaint”).) The Mansfield complaint, which is the target of 16 the pending motion to dismiss, alleges as follows. 17 Mansfield “is a supplier of diesel fuels and other petroleum products.” (Id. at ¶ 7.) 18 Mansfield’s “customers take delivery of such products at terminal facilities owned and operated 19 by” Mansfield. (Id.) It appears that Hellenic was, at some time relevant to this action, a customer 20 of Mansfield’s and that Kechagias is Hellenic’s “owner and managing member.” (Id. at ¶ 10; see 21 also Doc. No. 2 at 2.) In or around March 2019, Hellenic “applied for credit” with Mansfield “so 22 that [Hellenic] could purchase fuels and other petroleum products and take delivery at 23 [Mansfield’s] terminal facilities.” (Doc. No. 11 at ¶ 8.) Based on Hellenic’s representation that it 24 could, and its agreement that it would, pay Mansfield for purchases within ten days of each

25 1 The Hellenic complaint provides almost no factual allegations with regard to the events that gave rise to this action. For example, it does not allege who the various parties in this action are, 26 nor does it allege the business relationship between Hellenic and Mansfield itself. The lack of 27 factual allegations in the Hellenic complaint, however, is not before the court because this order addresses whether Mansfield’s challenged counterclaims and third-party complaint state 28 cognizable claims, not whether the Hellenic complaint does. 1 purchasing invoice, Mansfield agreed to sell fuel to Hellenic. (Id.) Hellenic, however, “has taken 2 delivery of fuels from [Mansfield] for which [it] has not paid[,] in the amount of at least $1.5 3 million.” (Id. at ¶ 9.) The Mansfield complaint alleges that Hellenic “provided false financial 4 information to [Mansfield] in order obtain credit, and never intended to pay for fuels 5 delivered . . ..” (Id. at ¶ 8.) Mansfield contends that Hellenic and Kechagias “have engaged in a 6 scheme [] to . . . obtain credit and purchase petroleum products and services on credit from 7 suppliers in and around California without the intention to pay for them.” (Id. at ¶ 10.) 8 Mansfield also alleges that, after a supplier terminates Hellenic’s credit but before that supplier 9 files suit against Hellenic to recover what it is owed, Hellenic “files frivolous lawsuits against 10 [the] suppliers, including the [Hellenic] Complaint filed [in this action],” making “baseless 11 allegations” of interference with or breach of contracts, interference with prospective economic 12 relations, and unfair competition. (Id.) 13 The Mansfield complaint asserts four causes of action: (1) a fraud claim; (2) a Racketeer 14 Influenced and Corrupt Organizations Act (“RICO”) claim; (3) a theft claim; and (4) a breach of 15 contract claim. (Id. at 10–13.) Each of the causes of action is asserted against both Hellenic and 16 Kechagias, except for the breach of contract claim, which is asserted against Hellenic only. (Id.) 17 On December 6, 2019, Hellenic and Kechagias filed the pending motion to dismiss the 18 Mansfield complaint. (Doc. No. 15.) On January 8, 2020, Mansfield filed its opposition to the 19 motion and, on January 15, 2020, Hellenic and Kechagias filed their reply thereto. (Doc. Nos. 17, 20 18.) 21 LEGAL STANDARDS 22 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 23 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “Dismissal 24 can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 25 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 26 1990). A plaintiff is required to allege “enough facts to state a claim to relief that is plausible on 27 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility 28 when the plaintiff pleads factual content that allows the court to draw the reasonable inference 1 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 2 (2009). 3 In determining whether a complaint states a claim on which relief may be granted, the 4 court accepts as true the allegations in the complaint and construes the allegations in the light 5 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 6 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth 7 of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. Ringrose, 788 8 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, 9 “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 10 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a 11 formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see 12 also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported 13 by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the 14 plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws 15 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 16 Council of Carpenters, 459 U.S. 519, 526 (1983). 17 ANALYSIS 18 Hellenic and Kechagias move to dismiss the Mansfield complaint in its entirety, arguing 19 that each of the causes of action asserted therein fails to state a cognizable claim. Mansfield 20 opposes the motion, contending that its claims survive a Rule 12(b)(6) analysis. The court 21 addresses the parties’ arguments below. 22 A. The Mansfield Complaint Does Not State a Cognizable Fraud Claim 23 Hellenic and Kechagias first move to dismiss Mansfield’s fraud claim arguing that it fails 24 to satisfy the pleading standards for Federal Rule of Civil Procedure 9(b). 25 “The elements of fraud, which give rise to the tort action for deceit, are (a) 26 misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity 27 (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and 28 (e) resulting damage.” Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn., 19 Cal. 1 App. 5th 399, 428 (2018) (quoting Beckwith v. Dahl, 205 Cal. App. 4th 1039, 1060 (2012)). 2 When asserting a fraud claim against a corporation, “the plaintiff’s burden . . . is even 3 greater . . . . The plaintiff must ‘allege the names of the persons who made the allegedly 4 fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, 5 and when it was said or written.’” Lazar v. Superior Court, 12 Cal.4th 631, 638 (1996) (quoting 6 Tarmann v. State Farm Mutual Auto. Ins. Co., 2 Cal. App. 4th 153, 157 (1991)). 7 Moreover, pursuant to the Federal Rules of Civil Procedure, a claim alleging fraud must 8 satisfy heightened pleading requirements. Fed. R. Civ. P. Rule 9(b) (“In alleging fraud or 9 mistake, a party must state with particularity the circumstances constituting fraud or mistake.”) 10 “Fraud can be averred by specifically alleging fraud, or by alleging facts that necessarily 11 constitute fraud (even if the word fraud is not used).” Kearns v. Ford Motor Co., 567 F.3d 1120, 12 1124 (9th Cir. 2009) (internal quotations omitted). “When an entire complaint, or an entire claim 13 within a complaint, is grounded in fraud and its allegations fail to satisfy the heightened pleading 14 requirements of Rule 9(b), a district court may dismiss the complaint or claim.” Vess v. Ciba- 15 Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003) (citing Bly-Magee v. California, 236 F.3d 16 1014, 1019 (9th Cir. 2001)). Under Rule 9(b), the “circumstances constituting the alleged fraud 17 [must] be specific enough to give defendants notice of its particular misconduct . . . so they can 18 defend against the charge and not just deny that they have done anything wrong.” Kearns, 567 19 F.3d at 1124 (internal quotations omitted) (citing Bly-Magee, 236 F.3d at 1019). To satisfy the 20 particularity standard of Rule 9(b), the plaintiff “must set forth more than the neutral facts 21 necessary to identify the transaction” at issue. Id. (internal quotation marks omitted) (citing In re 22 GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc), superseded by statute on 23 other grounds as stated in SEC v. Todd, 642 F.3d 1207, 1216 (9th Cir. 2011)); see also Vess, 317 24 F.3d at 1106 (“Averments of fraud must be accompanied by the who, what, when, where, and 25 how of the misconduct charged.”) (internal quotation marks omitted). 26 Here, even a perfunctory review of the Mansfield complaint reflects that Mansfield’s 27 fraud claim as alleged falls short of meeting these standards. Mansfield contends that it has 28 sufficiently pled its fraud claim because it alleged that “Kechagias delivered a false 2018 1 financial statement on behalf of Hellenic to Mansfield for purposes of obtaining credit.” (Doc. 2 No. 17 at 2; see also Doc. No. 11 at ¶ 13.) Mansfield further alleges that Hellenic and Kechagias 3 “made false promises and representations” about Hellenic’s “financial ability.” (Doc. No. 11 at 4 10.) These allegations are conclusory and do not allege with particularity, as required by Rule 5 9(b), the circumstances surrounding the alleged fraud. For example, Mansfield does not allege 6 what the purportedly false promises or representations were, who made them, when they were 7 made, or why they were false. Indeed, the Mansfield complaint is completely devoid of any 8 factual allegations with respect to the purported misrepresentations. The court is therefore unable 9 to ascertain the who, what, when, where, and how of the misconduct alleged. Setting aside that 10 fatal defect, the court notes that the Mansfield complaint also does not plausibly allege that 11 Hellenic and/or Kechagias knew that the promises or representations were false, that they 12 intended to defraud Mansfield, or that Mansfield justifiably relied on the purportedly false 13 promises and representations. 14 Accordingly, the court will grant Hellenic and Kechagias’ motion to dismiss the 15 Mansfield complaint’s fraud claim with leave to amend. See Eminence Capital, LLC v. Aspeon, 16 Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (“leave [to amend] shall be freely given when justice so 17 requires,” and instructing that this rule “is to be applied with extreme liberality”) (citation and 18 internal quotation marks omitted). 19 B. The Mansfield Complaint Does Not State a Cognizable RICO Claim 20 Hellenic and Kechagias next move to dismiss Mansfield’s RICO claim against them, 21 arguing that Mansfield has failed to sufficiently plead the elements of a RICO claim and lacks 22 standing to bring a RICO claim. The court addresses each argument in turn. 23 1. Pleading Sufficiency 24 The civil RICO statutes authorize suits and the award of treble damages against 25 individuals or entities who, through a “pattern of racketeering activity,” acquire an interest in, or 26 conduct the business of, an enterprise engaged in interstate or foreign commerce. 18 U.S.C. §§ 27 1962(b), 1962(c), 1964(d). In particular, § 1962(c), the provision under which Mansfield asserts 28 its RICO claim here, prohibits conducting the affairs of an enterprise engaged in interstate or 1 foreign commerce through a pattern of racketeering activities. To state a RICO claim under § 2 1962(c), a plaintiff must allege: (i) conduct (ii) of an enterprise (ii) through a pattern (iv) of 3 racketeering activity, and (v) injury in the plaintiffs’ business or property by the conduct 4 constituting the violation. Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). “The 5 touchstone of [§ 1962(c)] is that each individual defendant must be shown to have personally 6 participated in a pattern of racketeering activity.” Zazzali v. Ellison, 973 F. Supp. 2d 1187, 1200 7 (D. Idaho 2013). 8 Generally, plaintiffs pursuing RICO claims under § 1962(c) in federal court must satisfy 9 the pleading standards of Federal Civil Procedure Rule 8(a). See Wagh v. Metris Direct, Inc., 363 10 F.3d 821, 828 (9th Cir. 2003), overruled on other grounds by Odom v. Microsoft Corp., 486 F.3d 11 541, 551 (9th Cir. 2007) (en banc); Brewer v. Salyer, No. CV F 06-01324 AWI DLB, 2007 WL 12 1454276, at *3 n.2 (E.D. Cal. May 17, 2007) (stating that “the proper standard [for the instant 13 RICO claim] is the notice pleading requirements of Rule 8”). However, where, as here, a RICO 14 claim is based on a predicate offense of fraud, the “circumstances constituting fraud . . . shall be 15 stated with particularity” pursuant to Federal Civil Procedure Rule 9(b). Edwards v. Marin Park, 16 Inc., 356 F.3d 1058, 1066 (9th Cir. 2004). Thus, with respect to fraud-based RICO claims, “the 17 pleader must state the time, place, and specific content of the false representations as well as the 18 identities of the parties to the representation.” Odom, 486 F.3d at 553. 19 Here, Hellenic and Kechagias argue that Mansfield’s RICO claim should be dismissed 20 because it has failed to adequately plead a pattern of racketeering activity. The RICO statute 21 defines “racketeering activity” as any act indictable under several provisions of Title 18 of the 22 United States Code, including the predicate acts of wire fraud, § 1343 and mail fraud, § 1341. 23 See 18 U.S.C. § 1961(1). To make out a claim for the RICO predicate act of wire or mail fraud, 24 plaintiffs must allege (i) a scheme or artifice devised with (ii) the specific intent to defraud and 25 (iii) use of the United States mail or interstate telephone wires in furtherance thereof. See Orr v. 26 Bank of America, NT & SA, 285 F.3d 764, 782 (9th Cir. 2002). 27 To plead a pattern of racketeering activity, plaintiffs must allege that defendants 28 committed at least two of the statutorily enumerated predicate acts. 18 U.S.C. § 1961(5); Turner 1 v. Cook, 362 F.3d 1219, 1229 (9th Cir. 2004) (noting that, while at least two acts of racketeering 2 activity are required under RICO to establish a pattern, the pleading of two such acts is not 3 necessarily sufficient to do so). Plaintiffs must also allege: (i) that the racketeering predicates are 4 related, and (ii) that they amount to or pose a threat of continued criminal activity. Turner, 362 5 F.3d at 1229. The relatedness requirement is satisfied if the plaintiffs allege criminal acts with 6 the same or similar purposes, results, participants, victims, or methods of commission, or acts that 7 are otherwise interrelated by distinguishing characteristics and are not isolated events. Howard v. 8 America Online Inc., 208 F.3d 741, 749 (9th Cir. 2000). The continuity requirement is satisfied if 9 plaintiffs allege “either a series of related predicates extending over a substantial period of time, 10 i.e., closed-ended continuity, or past conduct that by its nature projects into the future with a 11 threat of repetition, i.e., open-ended continuity.” Id. at 750. 12 As with its fraud claim, here Mansfield has failed to plausibly allege a RICO claim against 13 either Hellenic or Kechagias. The Mansfield complaint alleges in conclusory fashion that 14 Hellenic “is an enterprise engaged in and whose activities affect interstate commerce,” that 15 Kechagias “conducts the affairs of the enterprise,” and that these parties “did conduct and 16 participate in . . . a pattern of racketeering activity . . . for the unlawful purpose of defrauding 17 [Mansfield] and others.” (Doc. No. 11 at ¶¶ 16, 17.) The Mansfield complaint alleges that 18 Hellenic and Kechagias “committed multiple related acts of mail and wire fraud from, among 19 other locations, the State of Florida, and to, among other locations, the States of Georgia and 20 California” and that “the[se] acts . . . constitute a pattern of racketeering activity.” (Id. at ¶¶ 18, 21 19.) As noted, these allegations are conclusory in nature and do not plausibly allege a RICO 22 violation against either Hellenic or Kechagias. 23 First, the allegations fail to meet the heightened pleading standard of Rule 9(b). 24 Mansfield simply asserts that Hellenic and Kechagias engaged in mail or wire fraud, but it does 25 not allege with particularity the time, place, and specific content of the purported fraud(s). 26 Second, with respect to alleging a pattern of racketeering activity, Mansfield fails to plausibly 27 allege any predicate act, let alone the two minimum required to allege a pattern of racketeering 28 activity. Mansfield argues that it “has alleged more than a single instance of fraudulent activity” 1 because Hellenic and Kechagias have engaged in the same fraudulent conduct “with multiple 2 suppliers and vendors,” and it points the court to three other lawsuits filed in this district. (Doc. 3 No. 17 at 4; see also Doc. No. 11 at 9–10.) However, the Mansfield complaint simply lists the 4 titles of those cases and does not explain how those cases, or the allegations set forth therein, are 5 related to Mansfield’s RICO claim here. 6 Accordingly, the court concludes that Mansfield has failed to plausibly allege a pattern of 7 racketeering activity. 8 2. Standing 9 To maintain an action in federal court, plaintiffs must allege facts showing that they have 10 Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs bringing 11 claims under the federal RICO statute must also meet additional standing requirements. Under 12 RICO’s civil enforcement mechanism, “[a]ny person injured in his business or property by reason 13 of a violation of [18 U.S.C. § 1962] may sue therefore in any appropriate United States district 14 court.” 18 U.S.C. § 1964(c). To have standing under § 1964(c), a plaintiff must allege: (i) “that 15 his alleged harm qualifies as injury to his business or property;” and (ii) “that his harm was ‘by 16 reason of’ the RICO violation, which requires the plaintiff to establish proximate causation.” 17 Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th Cir. 2008). The necessary injury 18 to business or property requires tangible and concrete financial loss, rather than speculative or 19 uncertain harm. Guerrero v. Gates, 357 F.3d 911, 920 (9th Cir. 2004); Steele v. Hospital Corp. of 20 Am., 36 F.3d 69, 71 (9th Cir. 1994). Meanwhile, reliance “on an attenuated chain of conjecture” 21 is insufficient to support proximate causation under § 1964(c). Salmon Spawning & Recovery 22 Alliance v. Gutierrez, 545 F.3d 1220, 1228 (9th Cir. 2008) (citation omitted). 23 Here, because the court has already found that the Mansfield complaint fails to adequately 24 allege a predicate offense or violation, the court must necessarily find that Mansfield lacks 25 standing to assert a RICO claim. See Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006) 26 (“When a court evaluates a RICO claim for proximate causation, the central question it must ask 27 is whether the alleged violation led directly to the plaintiff's injuries.”); Sedima, 473 U.S. at 496 28 (In a RICO action, “the plaintiff only has standing if, and can only recover to the extent that, he 1 has been injured in his business or property by the conduct constituting the violation”). 2 Having found that (1) the Mansfield complaint fails to sufficiently plead a pattern of 3 racketeering activity and (2) Mansfield lacks standing to bring a RICO claim, the court will also 4 grant Hellenic and Kechagias’ motion to dismiss Mansfield’s RICO claim with leave to amend. 5 C. The Mansfield Complaint Does Not State a Cognizable Theft Claim 6 Next, Hellenic and Kechagias move to dismiss plaintiff’s theft claim, contending that it, 7 too, fails to state a cognizable claim because “Mansfield does not have a private right of action 8 under [California Penal Code §] 484.” (Doc. No. 15 at 10.) 9 The Mansfield complaint alleges that Hellenic and Kechagias took delivery of its fuel with 10 no intention of paying for the fuel and thereby “engaged in theft within the meaning of California 11 Penal Code § 484.” (Doc. No. 11 at 12.) “A private right of action under a criminal statute has 12 rarely been implied.” Windham v. Davies, No. 1:14-cv-01651-LJO, 2015 WL 461628, at *6 13 (E.D. Cal. Feb. 3, 2015). As the court in Windham noted: 14 Where a private right of action has been implied, there was at least a statutory basis for inferring that a civil cause of action of some sort 15 lay in favor of someone. . . . California Penal Code section 484 does not contain any language suggesting that civil enforcement is 16 available to Plaintiff. Nor does the Court finds any authority that a violation of Penal Code section 484 provides a private right of action. 17 18 Id. In opposition to dismissal of this claim, Mansfield merely asserts that “[a]s the victim of theft, 19 [it] has a private right of action.” (Doc. No. 17 at 5.) Mansfield, however, provides no analysis 20 or support for its position in this regard, and the court finds no reason to question the analysis of 21 the court in Windham. 22 Accordingly, the court will grant Hellenic and Kechagias’ motion to dismiss Mansfield’s 23 theft claim without leave to amend and with prejudice.2 Cervantes v. Countrywide Home Loans, 24 Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (explaining that dismissal without leave to amend is 25 proper when amendment would be futile). 26 ///// 27 2 In any amended complaint, however, Mansfield may assert a claim for conversion, as it 28 indicated that it might do at the January 22, 2020 hearing. 1} D. The Mansfield Complaint Does Not State a Cognizable Breach of Contract Claim 2 Finally, Hellenic moves to dismiss Mansfield’s breach of contract claim, contending that 3 | it, too, fails to state a cognizable claim. A cause of action for breach of contract requires that 4 | plaintiff establish the following: (1) the existence of a contract; (2) plaintiff's performance; (3) 5 | defendant’s breach; (4) resulting damage; and (5) causation. Careau & Co. v. Sec. Pac. Bus. 6 | Credit, Inc., 222 Cal. App. 3d 1371, 1388 (1990), as modified on denial of reh’g (Oct. 31, 2001) 7 | (citing Reichert v. General Ins. Co., 68 Cal. 2d 822, 830 (1968)). 8 The Mansfield complaint alleges that Hellenic and Mansfield “entered into a Commercial 9 | Credit Application,” that Mansfield “performed all obligations required of it pursuant to the 10 | agreement,” and Hellenic “breached the agreement by failing to pay more than $1.5 Million to 11 | [Mansfield].” (Doc. No. 11 at 13.) These allegations do not plausibly allege a breach of contract 12 || claim because Mansfield has not alleged that the “Commercial Credit Application” was a contract 13 | between it and Hellenic. To the extent that the credit application was a contract, Mansfield has 14 | not alleged what specific provisions of that purported contract were breached by Hellenic. 15 | Accordingly, Hellenic’s motion to dismiss Mansfield’s breach of contract claim will also be 16 || granted with leave to amend. 17 CONCLUSION 18 For the reasons set forth above, Hellenic and Kechagias’s motion to dismiss (Doc. No. 15) 19 | is granted with leave to amend. Specifically, Mansfield is granted leave to amend its fraud, 20 || RICO, and breach of contract claims, but not its theft? claim. Any amended complaint shall be 21 | filed within thirty (30) days from the issuance of this order. 22 | IT IS SO ORDERED. me □ Dated: _ January 28, 2020 a aL, A 5 anys 24 UNITED STATES DISTRICT JUDGE 25 26 27 ——_ 3 Though, as noted, Mansfield may attempt to assert a conversion claim in any amended 28 | complaint it elects to file. 11