Victory Renewables LLC v. Energy Trading Company LLC

• Court: District Court, C.D. California
• Decided: August 20, 2019
• Docket: 2:19-cv-01661
• Status: Unknown

Opinion

1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 VICTORY RENEWABLES, LLC, ) CV 19-1661-RSWL-E ) 13 Plaintiff, ) ) ORDER re: Plaintiff’s 14 ) Motion to Dismiss [59] v. ) 15 ) ) 16 ENERGY TRADING CO., LLC, ) ) 17 ) Defendant. ) 18 ) ) 19 ) ) 20 ) 21 Plaintiff Victory Renewables, LLC (“Plaintiff”) 22 brings this Action against Defendant Energy Trading 23 Company, LLC (“Defendant”) for quantum meruit and 24 breach of contract claims regarding a series of alleged 25 nonpayments by Defendant. Before the Court is 26 Plaintiff’s Motion to Dismiss (“Motion”) [59]. Having 27 reviewed all papers submitted pertaining to this 28 Motion, the Court NOW FINDS AND RULES AS FOLLOWS: the 1 Court GRANTS Plaintiff’s Motion. 2 I. BACKGROUND 3 A. Factual Background 4 Plaintiff is a Kansas limited liability company, 5 whose principal place of business is located in 6 Southlake, Texas. Compl. ¶ 2, ECF No. 1. Defendant is 7 a Delaware limited liability company, whose principal 8 place of business is located in Long Beach, California. 9 Answer ¶ 2, ECF No. 15. 10 VicNRG, LLC (“VicNRG”) was a leading marketing, 11 distribution, and terminal operating company for 12 biodiesel, a type of diesel fuel. Pl.’s Mot. to 13 Dismiss (“Mot.”) ¶¶ 2-3, ECF No. 59. On March 10, 14 2017, Plaintiff entered into an “Asset Purchase 15 Agreement” with VicNRG, in which VicNRG sold its assets 16 and liabilities to Plaintiff. Id. ¶ 5. As part of the 17 Asset Purchase Agreement, Plaintiff and VicNRG also 18 entered into a “Transition Services Agreement”, in 19 which VicNRG agreed to continue to operate part of the 20 biodiesel business until Plaintiff could obtain various 21 permits, licenses, and consents required to assume 22 operations in full. Id. ¶¶ 6-7. During this 23 transitional period, VicNRG entered into three sales 24 agreements (“Sales Agreements”) with Defendant for the 25 delivery and purchase of biodiesel. Id. ¶ 9. 26 Plaintiff avers that pursuant to the Sales Agreements, 27 it delivered biodiesel to Defendant more than two 28 hundred and forty times. Id. ¶ 12. Plaintiff brings 1 this Action arguing that Defendant has not paid, and 2 has refused to pay, Plaintiff for the value of the 3 biodiesel. Compl. ¶ 6. 4 B. Procedural Background 5 Plaintiff filed the Complaint [1] in the United 6 States District Court for the Northern District of 7 Texas, Dallas Division, on February 23, 2018. On March 8 6, 2019, the Action was transferred to this Court [46]. 9 Plaintiff filed the current Motion to Dismiss [59] on 10 June 14, 2019. Defendant has not filed an opposition. 11 II. DISCUSSION 12 A. Legal Standard 13 A plaintiff may voluntarily dismiss an action 14 without a court order by filing “(i) a notice of 15 dismissal before the opposing party serves either an 16 answer or a motion for summary judgment; or (ii) a 17 stipulation of dismissal signed by all parties who have 18 appeared.” Fed. R. Civ. P. 41(a)(1)(A). Otherwise, 19 “an action may be dismissed at the plaintiff’s request 20 only by court order, on terms that the court considers 21 proper.” Fed. R. Civ. P. 41(a)(2). “If a defendant 22 has pleaded a counterclaim before being served with the 23 plaintiff’s motion to dismiss, the action may be 24 dismissed over the defendant’s objection only if the 25 counterclaim can remain pending for independent 26 adjudication.” Id. 27 “A district court should grant a motion for 28 voluntary dismissal under Rule 41(a)(2) unless a 1 defendant can show that it will suffer some plain legal 2 prejudice as a result.” Smith v. Lenches, 263 F.3d 3 972, 975 (9th Cir. 2001) (footnote and citations 4 omitted). Legal prejudice is defined as “prejudice to 5 some legal interest, some legal claim, [or] some legal 6 argument.” Westlands Water Dist. v. United States, 100 7 F.3d 94, 97 (9th Cir. 1996). Uncertainty because a 8 dispute remains unresolved or uncertainty caused by the 9 threat of future litigation does not constitute plain 10 legal prejudice. Id. at 96-97. 11 B. Discussion 12 Central District of California Local Rule 7-9 13 requires an opposing party to file an opposition or 14 statement of non-opposition to a motion “not later than 15 ten (10) days after service of the motion in the 16 instance of a new trial motion and not later than 17 twenty-one (21) days before the date designated for the 18 hearing of the motion in all other instances . . . .” 19 C.D. Cal. L.R. 7-9. “[F]ailure to file any required 20 document . . . may be deemed consent to the granting or 21 denial of the motion . . . .” C.D. Cal. L.R. 7-12; see 22 Irvin v. Madrid, 749 F. App'x 546, 547 (9th Cir. 2019) 23 (affirming dismissal on the basis of an unopposed 24 motion pursuant to California Local Rule 7-12). 25 Here, the hearing on Plaintiff’s Motion to Dismiss 26 was scheduled for July 16, 2019. Defendant’s 27 Opposition or Statement of Non-opposition was therefore 28 due by June 25, 2019. As of the date of this 1 memorandum, Defendant has not filed an opposition or 2 any other papers to continue the hearing date. The 3 Court deems Defendant’s failure to file an opposition 4 as consent to granting the Motion. Cf. Alipot v. Aurora 5 Loan Servs., LLC, No. CV 09-08431 DDP (EX), 2010 WL 6 365975, at *1 (C.D. Cal. Jan. 25, 2010)(“[T]he Court 7 deems Plaintiff’s failure to oppose consent to granting 8 Defendant’s Motion to Dismiss.”). Moreover, Defendant 9 has not filed a counterclaim in this Action, nor 10 identified any legal prejudice it would suffer if the 11 Action were dismissed. As such, the Court GRANTS 12 Plaintiff’s Motion. 13 III. CONCLUSION 14 Based on the foregoing, the Court GRANTS 15 Plaintiff’s Motion to Dismiss without prejudice.1 16 17 IT IS SO ORDERED. 18 19 DATED: August 20, 2019 s/ RONALD S.W. LEW 20 HONORABLE RONALD S.W. LEW Senior U.S. District Judge 21 22 23 24 1 Plaintiff’s Proposed Order contains language indicating 25 that the Court should dismiss the Action so “that Plaintiff may pursue its rights under the arbitration provision of the [Sales] 26 [A]greements with the Defendant in Southlake, Texas.” ECF No. 27 59-1. Neither the validity of the arbitration provision, nor a motion to compel arbitration, is before the Court. Thus, the 28 Court declines to rule on whether Plaintiff may pursue its rights in arbitration with Defendant in Southlake, Texas.