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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wo in the United States District Court for the Distri Case 3:14-cv-08146-NVW Document 51 Filed 04/20/15 Page 1 of 15 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Aramark Sports & Entertainment Services No. CV-14-08146-PCT-NVW Incorporated, 10 ORDER Plaintiff, 11 v. 12 Twin Anchors Marine Limited, 13 Defendant. 14 Before the court is Defendant Twin Anchors’ Motion to Dismiss Plaintiff’s First 15 Amended Complaint (Doc. 41). For the reasons that follow, the Motion will be denied. 16 17 I. BACKGROUND 18 Pursuant to a Houseboat Purchase Agreement (“Agreement”) signed in December 19 2005, Twin Anchors Marine, Ltd. (“Twin Anchors”) constructed and delivered to 20 Aramark Sports and Entertainment Services, Inc. (“Aramark”) six seventy-five-foot 21 houseboats. (Doc. 37-1 at 3, 20). In the “Warranties” section of the Agreement, Twin 22 Anchors warranted, among other things, that 1) “the Work shall be performed in 23 accordance with the terms and conditions of this Agreement,” 2) “the Houseboat shall be 24 free from defects in design, workmanship and materials,” and 3) “all Work will meet all 25 applicable American Boat and Yacht Council standards as regulated and inspected by the 26 National Marine Manufacturers Association, and the United States Coast Guard 27 specifications and requirements applicable to houseboats.” (Id. at 10-11.) The parties 28 Case 3:14-cv-08146-NVW Document 51 Filed 04/20/15 Page 2 of 15 1 agreed that the warranty for “defects in workmanship and materials” would “only extend 2 for a period of one (1) year from the date of Final Delivery to ARAMARK.” (Id. at 10.) 3 The Agreement also contained the following “Indemnity” provision: “[Twin Anchors] 4 agrees to defend, indemnify and hold ARAMARK, and its officers, directors, 5 shareholders and affiliates, harmless from and against any and all lawsuits, causes of 6 action, claims, liabilities, damages, losses, costs and expenses (including reasonable 7 attorneys’ fees and expenses), arising out of: (i) the negligent acts or omissions or the 8 intentional misconduct of [Twin Anchors] in the performance of this Agreement … and 9 (iii) any breach of this Agreement by [Twin Anchors].” (Id. at 13.) 10 On June 21, 2008, Robert Howeth rented one of Aramark’s houseboats to use for a 11 family vacation on Lake Powell. (Doc. 37 at 3.) While on board three days later, several 12 members of Howeth’s party experienced nausea, headaches, vomiting, and loss of 13 consciousness; Glenn Howeth, Robert Howeth’s brother, suffered a heart attack and died. 14 (Id.) In July 2009, the other members of the Howeth party sued Aramark, Twin Anchors, 15 and three other parties in federal district court in Utah, seeking damages for personal 16 injury and wrongful death allegedly caused by a carbon monoxide leak aboard the 17 houseboat. (Id. at 3-4.) 18 As part of that litigation, Twin Anchors filed an “Answer to Third Amended 19 Complaint and Cross Claim and Notice of Allocation of Fault” (“Twin Anchors 20 Answer”) in May 2011. The Twin Anchors Answer states twenty-three defenses and, 21 “[p]ursuant to Utah Code Annotated §78B-5-818, and otherwise as applicable under Utah 22 substantive law and Local Rule 9-1,” asserts “crossclaims for standing and any other 23 purpose, as necessary to allocate fault” to the other four defendants. (Doc. 25-1 at 3-22.) 24 Under the provision of Utah law cited by Twin Anchors, which is titled “Comparative 25 negligence,” the “fact finder may, and when requested by a party shall, allocate the 26 percentage or proportion of fault attributable to each person seeking recovery, to each 27 defendant, to any person immune from suit, and to any other person identified under 28 - 2 - Case 3:14-cv-08146-NVW Document 51 Filed 04/20/15 Page 3 of 15 1 Subsection 78B-5-821(4) for whom there is a factual and legal basis to allocate fault.” 2 Utah Code Ann. § 78B-5-818(4)(a). 3 The Twin Anchors Answer explains why, in Twin Anchors’ view, each of the 4 other defendants should be held liable in lieu of Twin Anchors. For example, Twin 5 Anchors argued that if “the death of Glenn Howeth and/or any injuries incurred by 6 Plaintiffs . was caused, in whole or in part, by the leak of carbon monoxide from the 7 [water separator] during the voyage or otherwise, the said leak was proximately caused 8 by the failure of Aramark . to properly adjust the valve on the water discharge line.” 9 (Doc. 25-1 at 23.) The Twin Anchors Answer also asserts that, “In the event that Twin 10 Anchors is held liable to any person or entity for any claim or cause of action arising 11 from the subject incident or any damages alleged by Plaintiffs, it is entitled to an 12 allocation of fault as against Aramark in accordance with applicable law.” (Id. at 25.) 13 Twin Anchors sought similar allocations of fault against all codefendants. Nowhere does 14 the Twin Anchors Answer plead causes of action against Aramark or any other 15 defendant. 16 Aramark filed an “Amended Answer of Defendants Aramark Corporation and 17 Aramark Sports and Entertainment Services, LLC’s to Plaintiffs’ Third Amended 18 Complaint, Counterclaim Against Robert Howeth, and Cross-Claim for Apportionment 19 of Fault” (“Aramark Answer”) on July 5, 2011. (Doc. 25-1 at 60.) In addition to 20 asserting thirty-eight affirmative defenses, the Aramark Answer includes a counterclaim 21 against Robert Howeth, seeking indemnification for any damages awarded against 22 Aramark in the Utah litigation, pursuant to an indemnity clause in Howeth’s rental 23 agreement with Aramark. (Id. at 54-58.) The Aramark Answer also contains a clause, 24 similar to that in the Twin Anchors Answer, declaring, “In the event that ARAMARK is 25 held liable to any person or entity for any claim or cause of action arising from the 26 subject incident or any damages alleged by the Plaintiffs, it is entitled [to] an allocation of 27 fault against [the other defendants, including Twin Anchors] in accordance with 28 - 3 - Case 3:14-cv-08146-NVW Document 51 Filed 04/20/15 Page 4 of 15 1 applicable law.” (Id. at 60.) Like the Twin Anchors Answer, the Aramark Answer does 2 not plead any causes of action against any co-defendants. 3 The Utah litigation settled in November 2011. (Id. at 72.) Under the settlement 4 agreement, all defendants released any claims they might have against one another, with 5 one exception: “Aramark and Twin Anchors specifically reserve all of their rights to 6 assert an indemnification action pursuant to the [Agreement] between them, which rights 7 are not being discharged by this [settlement agreement].” (Id. at 75.) Aramark then 8 brought this action against Twin Anchors on August 18, 2014. (Doc. 1.) The First 9 Amended Complaint (Doc. 37), filed January 7, 2015, seeks damages under the 10 Agreement’s indemnity provision for sums Aramark paid out in the Utah litigation. 11 Specifically, Aramark claims Twin Anchors is responsible for those payments because 12 (1) “Twin Anchors breached its contractual obligations to Aramark and delivered the 13 [houseboat] with defects in its design, workmanship and materials, which did not meet 14 the applicable standards,” and (2) Twin Anchors “negligently designed, constructed, sold 15 and failed to give warnings and/or instructions about the [houseboat], such that, unknown 16 to Aramark, users and others, [carbon monoxide] was released under the houseboat, 17 where it accumulated and then migrated into the living spaces.” (Doc. 37 at 4-5.) In 18 essence, Aramark’s first cause of action seeks indemnification for Twin Anchors’ breach 19 of the warranties in the Agreement; the second seeks indemnification for general 20 negligence in design and construction of the houseboat. At oral argument, counsel for 21 Aramark conceded that these causes of action merely apply different labels to the same 22 underlying facts. 23 Twin Anchors’ Motion, filed February 4, 2015, urges dismissal of Aramark’s First 24 Amended Complaint on the grounds that it fails to state a claim upon which relief can be 25 granted, as required by Rule 12(b)(6) of the Federal Rules of Civil Procedure. 26 27 28 - 4 - Case 3:14-cv-08146-NVW Document 51 Filed 04/20/15 Page 5 of 15 1 II. STANDARD OF REVIEW 2 Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal 3 theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” 4 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). On a motion to 5 dismiss under Rule 12(b)(6), all allegations of material fact are assumed to be true and 6 construed in the light most favorable to the non-moving party. Cousins v. Lockyer, 568 7 F.3d 1063, 1067 (9th Cir. 2009). The principle that a court accepts as true all of the 8 allegations in a complaint, however, does not apply to legal conclusions or conclusory 9 factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive, a claim 10 must have “facial plausibility”—the plaintiff must plead “factual content that allows the 11 court to draw the reasonable inference that the defendant is liable for the misconduct 12 alleged.” Id. Finally, courts generally may not consider any material beyond the 13 pleadings when ruling on a Rule 12(b)(6) motion. One exception, however, is that a 14 court may take judicial notice of matters of public record under Federal Rule of Evidence 15 201.
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