Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brandstorm, Inc. v. Global Sterilization and Fumigation, Inc.

United States District Court, D. Nevada

December 20, 2019

BRANDSTORM, INC., Plaintiff,



         I. SUMMARY

         Defendant Global Sterilization and Fumigation, Inc. (“Global”) agreed to pasteurize Plaintiff Brandstorm, Inc.'s chia and hull hemp seeds but allegedly damaged the seeds in the process. Plaintiff later filed this action against Defendants Global and its CEO Bryan Gardner. Before the Court is Defendants' motion to dismiss (“Motion”).[1] (ECF No. 20.) For the reasons explained below, the Court will grant in part and deny in part the Motion.


         The following facts are adapted from the First Amended Complaint (“FAC”).[2] (ECF No. 18.)

         During a meeting on October 18, 2017, Plaintiff expressed concerns about Global's pasteurization process, but Gardner reassured Plaintiff that Global had successfully pasteurized hulled hemp seeds without causing any damage. (Id. at 6.) In November 2017, Plaintiff and Global entered into an oral contract where Global would pasteurize over 100, 000 pounds of Plaintiff's chia and hulled hemp seeds, and then prepare and ship the finished product to Plaintiff's customers. (Id. at 2, 5.) On November 10, 2017, Global sent Plaintiff a Pasteurization Report (“Report”) that outlined the pasteurization process, which Plaintiff again questioned. (Id. at 6.) In late November 2017, Gardner reassured Plaintiff that the temperature and duration utilized to sterilize the hemp seeds was appropriate. (Id. at 6.) On December 17, 2017, Global sent Plaintiff a Certificate of Analysis (“Certificate”) of the steam pasteurization process for the hemp seeds, which purportedly presented a high reduction level of salmonella. (Id.) Neither the Report nor the Certificate disclosed the side effects of the pasteurization process, which ultimately resulted in oil leaking, clumping, molding, discoloring, reeking, and burning of the seeds (Id. at 4, 7-8.) In late 2017 and in 2018, Plaintiff discovered that Global damaged Plaintiff's chia and hulled hemp seeds, which Plaintiff's customers later rejected. (Id. at 4.) Although Plaintiff salvaged and sold most of the chia seeds, the hemp seeds were unsalvageable. (Id.)

         Plaintiff alleges two claims against Global for breach of contract (first claim) and unjust enrichment and quantum meruit (fifth claim), and the remaining claims against both Defendants for fraudulent misrepresentation and concealment, [3] negligent misrepresentation and negligence. (Id. at 5-12.)


         A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citation omitted).

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow a court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged-but not shown-that the pleader is entitled to relief.” Id. at 679 (internal quotation marks omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.

         Fraud claims must meet a heightened pleading standard under Federal Rule of Civil Procedure 9(b), which requires a party to “state with particularity the circumstances constituting fraud.” See Glen Holly Entm't, Inc. v. Tektronix, Inc., 100 F.Supp.2d 1086, 1093 (C.D. Cal. 1999) (“Claims for fraud and negligent misrepresentation must meet the heightened pleading requirements of Rule 9(b).”) The plaintiff must plead with particularity “the who, what, when, where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotation marks omitted). “Rule 9(b) demands that, when averments of fraud are made, the circumstances constituting the alleged fraud be specific enough to give defendants notice of the particular misconduct so that they can defend against the charge and not just deny that they have done anything wrong.” Id. at 1108. However, when a plaintiff fails to plead fraud with particularity, “leave to amend should be granted if it appears at all possible that the plaintiff can correct the defect.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1988).


         For the reasons discussed below, the Court will deny the Motion as to Plaintiff's claims for breach of contract, unjust enrichment and quantum meruit, and grant the Motion as to Plaintiff's claims for negligence and fraudulent and negligent misrepresentation. However, the Court will grant Plaintiff leave to amend its fraud and negligent misrepresentation claims (as to only one alleged misrepresentation).

         A. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.