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discussing injury of higher insurance premiums resulting from biased counsel's decisions to settle meritless claims
Summary of this case from Friedman v. AARP, Inc.Opinion
No. Civ. S-06-1357 WBS KJM.
September 23, 2006
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Plaintiff Monarch Plumbing Company, Inc., has filed suit against defendants Ranger Insurance Company and Riverstone Claims Management, LLC alleging, inter alia, breach of contract and breach of the covenant of good faith and fair dealing. Defendants now move to dismiss for failure to state a claim. For the following reasons, the court will grant defendant's motion in part.
I. Factual and Procedural Background
Plaintiff is a contract plumbing business. (Compl. ¶ 1.) On December 15, 1998, it obtained a Commercial General Liability ("CGL") policy from defendant Ranger Insurance Company ("Ranger"). (Townsend Decl. Ex. A at 1, 15.) This policy covered, among other things, defects in plaintiff's product or work. (Id.) When claims for defective plumbing installations arose, however, plaintiff was dissatisfied with how Ranger and its construction defects claims manager, defendant Riverstone Claims Management ("Riverstone"), handled these disputes. (Compl. ¶ 9(a).) It thus filed this lawsuit to clarify the parties' rights and duties under the insurance policy.
In particular, plaintiff objects to defendants' refusal to permit plaintiff to have input on claim assessments, defense strategy, and decisions regarding whether to settle claims and for how much. (Id.) Plaintiff also asserts that the defense attorneys retained by defendants could not represent its interests and defendants' interests at the same time. (Id. ¶ 9(e).) Finally, plaintiff complains that defendants involved themselves in the resolution of additional claims that plaintiff did not actually tender for defense. (Id. ¶ 9(f), 13, 16(k).)
As a result of this course of conduct, plaintiff alleges that it has been required to pay higher insurance premiums, which have resulted from defendants' autocratic decisions to pay off many of the claims. (Id. ¶ 16(a).) Plaintiff seeks declaratory judgment establishing its right to decide whether or not to tender claims to defendants for defense (Claim One), damages for breach of contract and breach of the covenant of good faith and fair dealing (Claims Two and Three), and disgorgement of ill-gotten profits, actionable under California Business and Professions Code §§ 17200-17210 (Claim Four). Defendants dispute plaintiff's ability to raise any of these claims, primarily arguing that an insurer's right to pursue defense of its insureds, without input from the insured, is well established under California law and that defendants' actions did not violate the terms of the insurance contract between the parties. Additionally, defendants contend that Riverstone, as an agent of Ranger, cannot be held liable under any circumstances.
II. Discussion
A. Legal Standard
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cruz v. Beto, 405 U.S. 319 (1972). The court may not dismiss for failure to state a claim unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Van Buskirk v. CNN, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Dismissal is appropriate, however, where the pleader fails to allege facts that support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988); see also Conley v. Gibson, 355 U.S. 41, 47 (1957) (complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests").
In general, the court may not consider material other than the facts alleged in the complaint when deciding a motion to dismiss. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996) ("A motion to dismiss . . . must be treated as a motion for summary judgment . . . if either party . . . submits materials outside the pleadings in support or opposition to the motion, and if the district court relies on those materials."). However, the court may consider extrinsic documents, such as contracts and insurance policies, when "the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); see also Fin. Sec. Assurance, Inc. v. Stephens, Inc., 450 F.3d 1257, 1264 (11th Cir. 2006) ("This court recognizes an exception, however, in cases in which a plaintiff refers to a document in its complaint, the document is central to its claim, its contents are not in dispute, and the defendant attaches the document to its motion to dismiss."). This exception is designed to "[p]revent plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based." Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (citation omitted), superceded by statute on other grounds as recognized in Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006).
Plaintiff argues that the court should not consider the terms of the policy it purchased from Ranger because "the gravamen of the Complaint is violation of basic contractual duties and implied covenants, rather than of specific policy provisions." (Pl.'s Opp'n to Defs.' Mot. to Dismiss 3 n. 1.) However, as noted above, the Ninth Circuit does not require that the complaint "explicitly allege the contents of [a] document" before allowing its consideration on a motion to dismiss.Knievel, 393 F.3d at 1076. The document need only be "integral to the plaintiff's claims. . . ." Parrino, 146 F.3d at 706 n. 4. Plaintiff's attempt to distance its complaint, which allegesbreach of contract, from the insurance policy at issue is simply absurd. Had plaintiff argued that other terms, terms outside the scope of the policy, governed the relationship between these parties, then the court might have reason to believe that plaintiff's complaint is based on some other agreement. But plaintiff has not disputed the authenticity of the policy or suggested that this is not the document that governs the relationship between the parties. Consequently, because the policy establishes defendants' duties to (and covenants with) plaintiff on which plaintiff bases its complaint, it is unquestionably central to plaintiff's claims and the court may consider it here. Cf. Stephens, 450 F.3d at 1264 (considering an insurance policy that was not attached to the complaint because the complaint referred to it and relied on its "effect").
B. Defendants' Liability in General
1. Declaratory Relief (Claim One)
In its complaint, plaintiff first seeks a declaration establishing its right to determine whether the claims against it have any merit before making tender. (Compl. ¶ 13.) Additionally, plaintiff seeks declaratory judgment as to whether the attorneys procured by defendants have a conflict of interest in representing plaintiff and whether plaintiff has a right to direct, or at least be informed of, claim management strategy. (Id.) Finally, plaintiff seeks a determination that defendants have wrongfully prompted its other insurers to open files on and defend claims without instructions from plaintiff to do so. (Id.) The court will thus address in turn whether these allegations are sufficient to survive defendants' motion to dismiss plaintiff's claim for declaratory relief.
a. Defending Un-tendered, Meritless Claims
In California, "the insurer's obligation to defend and investigate is not triggered until Plaintiff tenders the defense of a third party lawsuit to the insurer." Icasiano v. Allstate Ins. Co., 103 F. Supp. 2d 1187, 1191 (N.D. Cal. 2000) (emphasis added) (citing Foster-Gardner, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 18 Cal. 4th 857, 879 (1998));North Star Reinsurance Corp. v. Superior Court, 10 Cal. App. 4th 1815, 1823 (1992) (same); see also Montrose Chem. Corp. v. Superior Court, 6 Cal. 4th 287, 295 (1993) ("The defense duty is a continuing one, arising on tender of defense. . . ." (emphasis added)). Defendants argue that they were compelled to proactively pursue even mere incipient claims because their "duty to defend attaches whenever the insurer [simply] ascertains facts which may give rise to ['even a bare possibility of'] coverage." (Defs.' Mot. to Dismiss 8.) However, the cases they rely on in support of this proposition are easily distinguishable from this action. Significantly, in both instances, unlike this litigation, the insureds actually tendered their claims to the insurance companies. Montrose Chem., 6 Cal. 4th at 293 ("Montrose gave notice to the carriers and requested that they provide it with a defense pursuant to their policies."); Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 267 (1966) ("Dr. Gray notified defendant of the suit, stating that he had acted in self defense, and requested that the company defend."). Defendants have simply taken statements from Montrose and Gray out of context. They therefore have no legal support for their belief that an insurance company, as a rule, may unilaterally pursue matters on behalf of its insureds without their consent or tender.
At oral argument, defendants suggested that many of the additional insureds covered under the CGL policy did in fact tender their claims, so as to trigger the duty to defend. As these facts do not appear from the pleadings, however, the court will not consider them in deciding a motion to dismiss.
Insurers can, of course, use language in the policy to secure a right to pursue untendered claims.
Requiring insureds to tender claims before imposing the duty to defend, and conversely permitting insureds to pursue their own defense prior to tender, is consistent with other developments in California insurance law. For example, provided that the policy at issue has a no-voluntary-payment provision, an insured cannot demand reimbursement from its insurer for costs voluntarily incurred in the defense of an un-tendered claim.Truck Ins. Exchange v. Unigard Ins. Co., 79 Cal. App. 4th 966, 981 (2000) (citing Gribaldo, Jacobs, Jones Assocs. v. Agrippina Versicherunges A.G., 3 Cal. 3d 434, 449 (1970)). Thus, absent policy language to the contrary, an insured can independently defend a claim against it, and the insurer will not suffer any detriment as a result. See also Truck Ins. Exchange, 79 Cal. App. 4th at 975 ("If an insured breaches a notice provision, resulting in substantial prejudice to the defense, the insurer is relieved of liability.").
Nevertheless, the court's analysis does not end here, because the terms of the contract also govern when an insurer's duty to defend arises. In relevant part, the insurance agreement between the parties provides that Ranger "will have the right and duty to defend the insured against any 'suit' seeking . . . damages [for property damage]." (Townsend Decl. Ex. A at 13.) It further states that Ranger "may at [its] discretion investigate any 'occurrence' and settle any claim or 'suit' that may result." (Id.) But perhaps most notably, it imposes on plaintiff a duty to notify Ranger "as soon as practicable of an 'occurrence' or an offense which may result in a claim." (Id. at 20.) Under the policy, "'[o]ccurrence' means an accident, including continuous or repeated exposure to substantially the same general harmful conditions." (Id. at 23.)
This language is significant because by reserving a right to defend both claims and suits, Ranger assured that it had a right to settle both formal lawsuits and "demand[s] for something as a right, or as due." Foster-Gardner, 18 Cal. 4th at 879 (quoting Phoenix Ins. Co. v. Sukut Constr. Co., Inc., 136 Cal. App. 3d 673, 677 (1982)); see also id. ("'A formal lawsuit is not required before a claim is made.'").
The court has no way of knowing at this stage in the proceedings whether the un-tendered claims that defendants settled constituted an occurrence, which defendants had a right to investigate and settle and plaintiff had a duty to disclose. This inquiry is a factual one and therefore one that the court cannot undertake on a motion to dismiss.
b. Appointing Conflicted Counsel
Plaintiff also complains that defendants wrongfully supplied defense attorneys who suffered from a conflict of interest and made decisions about whether to settle claims without input from plaintiff. Under California law, "[a]n insurer has the right to control the defense it provides its insured so long as there is not a conflict of interest." James 3 Corp. v. Truck Ins. Exchange, 91 Cal. App. 4th 1093, 1103 n. 3 (2001) (citations omitted); see also Cal. Civ. Code § 2860 (requiring that insurers provide independent counsel for an insured when a conflict of interest arises); W. Polymer Tech., Inc. v. Reliance Ins. Co., 32 Cal. App. 4th 14, 24 (1995) ("In general, the insurer is entitled to control settlement negotiations [and settle for an amount within the policy limits] without interference from the insured."). Although "not every conflict of interest entitles an insured to an insurer-paid independent counsel," whether the circumstances here warranted appointment of such will involve a factual determination and consequently, dismissal of the complaint on this ground is not warranted. James 3, 91 Cal. App. 4th at 1101-02.
Defendants argue that plaintiff's claims based on an alleged conflict of interests theory should be dismissed because "Plaintiff fails to allege in its Complaint or assert in its Opposition any facts which would require RANGER to provide Plaintiff with independent counsel pursuant to California Civil Code § 2860." (Defs.' Reply 9.) Essentially, defendants ask the court to hold plaintiff to a heightened pleading standard, in defiance of the extremely liberal standard provided in Federal Rule of Civil Procedure 8(a). However, under the federal rules, plaintiff need only "give the defendant[s] fair notice of what the . . . claim is and the grounds upon which it rests."Conley, 355 U.S. at 47. Plaintiff's assertion that defendants provided conflicted counsel meets this threshold. Defendants must utilize the "liberal opportunity for discovery and the other pretrial procedures established by the Rules to [discern] more precisely the basis of both claim and defense." Id. at 47-48.
c. Encouraging Other Insurers to Defend Meritless Claims
Plaintiff further complains that defendants improperly involved its other insurers in efforts to settle claims against it. Significantly, when an insurer's duty to defend is triggered, under some circumstances, the insurer may involve the insured's other insurers in the defense of claims. Compare Truck Ins. Exchange, 79 Cal. App. 4th at 980 (discussing how co-insurers can be involved), with Diamond Heights, 227 Cal. App. 3d at 582 (discussing limits on involving excess insurers in defense of a claim). However, because the court cannot determine from the face of the complaint and the related policy documents that defendants actually had a duty to defend, it similarly cannot say at this time that defendants had a right to involve plaintiff's other insurers in a defense of claims against its insured. Moreover, the court does not have information at this time regarding the terms under which these other insurers provided insurance, which might have had some bearing on defendants' ability to involve them in the settlement of claims, or potential claims, against plaintiff. See Diamond Heights, 227 Cal. App. 3d at 577-80 (discussing (1) the legal rights of primary and excess insurers to control litigation and settlement and (2) how the language in an excess insurer's policy can alter those rights). Consequently, plaintiff's claim for declaratory relief is further justified on these grounds.
The complaint does not specify whether the "other" insurers were primary or excess insurers. This might be significant in this case because, "as between a primary insurer and an excess insurer, the former is solely responsible for defense costs. . . ." Truck Ins. Exchange, 79 Cal. App. 4th at 978 (citingSignal Cos., Inc. v. Harbor Ins. Co., 27 Cal. 3d 359, 365-69 (1980)) (emphasis added). Excess insurers can, at their discretion, "agree to undertake the defense" "once the primary insurer tenders its full policy limits." Id. (emphasis added) (charging primary insurers with responsibility for full defense costs even if the claim is "for a sum in excess of the primary coverage"); Diamond Heights, 227 Cal. App. 3d at 582. In contrast, co-insurers can join the defense at its inception, regardless of whether the first insurer to undertake a defense has tendered its full policy limits. Truck Ins. Exchange, 79 Cal. App. 4th at 980.
2. Breach of Contract (Claim Two)
Plaintiff's claim for breach of contract accuses defendants of breaching their obligations under the insurance policy by (1) unilaterally pursuing claims that plaintiff has not tendered for defense and settling claims in excess of the amount they are worth; (2) encouraging plaintiff's other insurers to open files on and defend claims without plaintiff's permission; (3) imposing defense attorneys who suffer from a conflict of interest; and (4) engaging in the practice of setting high loss reserves on construction defect claims. (Compl. ¶ 16(a)-(k).) However, these allegations, as plaintiff itself points out, are not based "upon specific terms and contents of the insurance policies." (Pl.'s Opp'n to Defs.' Mot to Dismiss 4 n. 1.) Rather, plaintiff alleges that defendants acted outside of the terms of their agreement and failed to adhere to general legal obligations not addressed by the terms of their agreement. Consequently, although the court can address these matters via declaratory judgment or through a claim of breach of the covenant of good faith and fair dealing, the complaint as drafted fails to state a claim for breach of contract.
In paragraph 16(a)-(k) of the complaint, plaintiff identifies 11 ways in which defendants have allegedly breached the agreement for insurance. Some of these subsections elaborate on, or simply reiterate, more general accusations and the court has thus distilled these allegations into four broader categories for ease of analysis.
Given this outcome, the court need not address the viability of plaintiff's allegations that setting high loss reserves on construction defect claims, and consequently causing plaintiff's premiums to increase, inflicted actionable injury. These assertions are only part of plaintiff's breach of contract claim and as explained in the text, the court cannot discern, and plaintiff has failed to explain, how these actions violated theterms of the insurance agreement. Moreover, the workers' compensation policy cases on which plaintiff relies to sustain these allegations, cases which defendants convincingly argue are inapposite in a case involving a GCL policy, deal with a breach of the violation of the covenant of good faith and fair dealing — not a breach of contract — claim. Sec. Officers Serv., Inc. v. State Comp. Ins. Fund, 17 Cal. App. 4th 887, 894 (1993) (recognizing that failure "to handle claims 'properly' or 'expediently' might constitute a breach of a policy's implied covenant of good faith and fair dealing, but not a breach of contract terms that merely establish an unspecified "duty to defend").
3. Breach of the Covenant of Good Faith and Fair Dealing (Claim Three)
Plaintiff's third cause of action is for breach of the covenant of good faith and fair dealing. Under California law, all insurance contracts contain an implied covenant of good faith and fair dealing. Hanson v. Prudential Ins. Co. of Am., 783 F.2d 762, 766 (9th Cir. 1985) (citing Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809, 818 (1979)). This covenant requires that "'neither party . . . do anything which will injure the right of the other to receive the benefits of the agreement.'" Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566, 573 (1973) (quoting Comunale v. Traders Gen. Ins. Co., 50 Cal. 2d 654, 658 (1958)). The duty is separate from those mandated by the terms of a typical insurance policy — "to defend, settle, or pay." Id. at 574. Instead, it involves an "obligation, deemed to be imposed by the law, under which the insurer must act fairly and in good faith in discharging its contractual responsibilities." Id.
Plaintiff here alleges that defendants over-stepped their right to defend by pursuing un-tendered claims contrary to the provisions of the contract. (Compl. ¶ 13, 22, 23(c) (accusing defendants of "thwarting Plaintiff's efforts to minimize its loss history" by pursuing claims before defendant tendered them).) In addition, plaintiff alleges that defendants engaged in the practice of pursuing settlements that were less than the unreasonably high loss reserves, yet greater than the amount warranted by the claims. (Compl. ¶ 16(b), 22.) In doing so, plaintiff contends that defendants favorably manipulated their own financial position, at plaintiff's expense. (Id. (claiming that defendants "artificially increase[d] their combined reported fees, earnings and profits, all to the detriment of Plaintiff").) See Anguiano v. Allstate Ins. Co., 209 F.3d 1167, 1169 (9th Cir. 2000) (citing, inter alia,Comunale, 50 Cal. 2d at 659) ("California law requires that an insurer take into account the interest of the insured and give it at least as much consideration as it does to its own interest when evaluating settlement offers."). Finally, plaintiff has alleged that defendants repeatedly provided conflicted counsel to represent plaintiffs in these claims. (Compl. ¶ 13, 16(j), 22.)
Although plaintiff's explanation of the details of the purported conflict is lacking, it is sufficient to comport with the liberal pleading standard provided by Rule 8.
Assuming these allegations to be true, plaintiff has adequately asserted that defendants acted in their own interest over that of their insured in assessing claims, which "in some way injured [plaintiff's] right to receive the benefits of the agreement."Gruenberg, 9 Cal. 3d at 573. While plaintiffs may not prevail on this issue on summary judgment or at trial, the court cannot say at this stage that plaintiff will be unable to prove any set of facts in support of this claim.
4. Section 17200 Disgorgement (Claim Four)
Plaintiff's final claim is for unjust enrichment in violation of California Business and Professions Code §§ 17200-17210. In support of this claim, plaintiff alleges, inter alia, that by settling claims without merit, defendants have enriched themselves (by "artificially increas[ing] their combined reported fees, earnings and profits) at plaintiff's expense. (Compl. ¶ 31(g).)
The Unfair Competition Law ("UCL") prohibits "any unlawful, unfair or fraudulent business act or practice." Cal. Bus. Prof. Code § 17200. California courts have interpreted this to include just about everything the courts might find objectionable.Gafcon, Inc. v. Ponsor Assocs., 98 Cal. App. 4th 1388, 1425 (2002) ("Virtually any law can serve as the predicate for a Business and Professions Code section 17200 action; it may be . . . civil or criminal, federal, state or municipal, statutory, regulatory, or court-made."). Plaintiff here has alleged, among other things, a violation of California Civil Code § 2860 (requiring independent counsel when insurer's interest conflict with those of the insured) and thus has properly identified an "unlawful" business practice. Additionally, plaintiff has alleged an injury — higher insurance premiums — that may have resulted from a decision by allegedly biased counsel to settle meritless claims. See Cal. Bus. Prof. Code § 17204 ("Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction . . . by any person who has suffered injury in fact and has lost money or property as a result of such unfair competition."). Finally, the limited injunctive and monetary relief available under the UCL is exactly what plaintiff seeks in its fourth cause of action. (Compl. Prayer for Relief ¶ 4(a), (c).) Plaintiff has thus properly plead a cause of action under the UCL.
Curiously, defendants rely on Heighley v. J.C. Penney Life Ins. Co., 257 F. Supp. 2d 1241 (C.D. Cal. 2003), for the proposition that plaintiff's claim is barred because she has an alternative adequate remedy at law — a claim for breach of contract. This assertion is, of course, inconsistent with defendants' position, and this court's determination, that plaintiff has not alleged a claim for breach of contract. (Defs.' Mot. to Dismiss 2.)
Moreover, the court is skeptical that the test for establishing a UCL claim devised seemingly out of whole cloth in Heighley is the correct one. Heighley stated that, in the insurance context,
[a]llegations that are essential to plead a claim for violation of the [UCL] are: (1) plaintiff's status as an insured or intended beneficiary of the insurance policy, (2) the existence of the policy, (3) the insurer's conduct and that such conduct was an unfair, unlawful or fraudulent business practice in violation of Bus. Prof. Code § 17200, (4) plaintiff has no adequate remedy at law, (5) a request for injunctive relief and or restitution . . ., and (6) a request for attorney's fees.257 F. Supp. 2d at 1259. Since "[t]he unfair competition law does not provide for attorney fees", the court is at a loss as to why a plaintiff must request them as an "essential" element of its pleadings. Walker v. Countrywide Home Loans, Inc., 98 Cal. App. 4th 1158, 1179 (2002). Likewise, the requirement that plaintiff have no adequate remedy at law is not found in the text of the statute.
C. Riverstone's Liability
Defendants separately contend that the complaint fails to state a claim against Riverstone, who managed construction defect claims for Ranger. Riverstone was not a party to the insurance contract on which these claims are based. In Gruenberg v. Aetna Ins. Co. the California Supreme Court established that non-insurer defendants, including "corporation[s] engaged in the business of investigating and adjusting insurance claims", are "not parties to the agreements for insurance" nor are they "subject to an implied duty of good faith and fair dealing." 9 Cal. 3d 566, 569 n. 1, 575 (1973). Similarly, Riverstone cannot be held liable pursuant to the terms of an insurance agreement between plaintiff and Ranger.
Significantly, though, the Gruenberg court did "not consider the possibility that [the non-insurer defendants] may have committed another tort in their respective capacities as total strangers to the contracts of insurance." Id. at 576. Thus, it appears that plaintiff can, legally speaking, bring at least some claims against non-insurer defendants, and nothing in plaintiff's existing complaint precludes it from alleging additional facts accusing Riverstone of other tortious conduct. Accordingly, the court will grant plaintiff leave to amend its complaint in the event that such claims can be alleged against Riverstone. Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) ("In dismissing for failure to state a claim, 'a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.'" (quoting Cook, Perkiss Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990))).
Plaintiff's fourth cause of action, for violation of California Business and Professions Code § 17200, is likewise not cognizable with respect to Riverstone. The relief available under § 17200 is strictly limited to restitution — money damages are not an option. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1144 (2003). Accordingly, because Ranger, and not Riverstone, has collected the funds that plaintiff wants returned (i.e., higher premiums), plaintiff has no cause of action against Riverstone under the UCL.
III. Conclusion
The complaint fails to state a claim upon which relief can be granted against any party for breach of contract and against Riverstone on any claim. Plaintiff might be able to cure the defects discussed above through amendment. Defendant's arguments with respect to all remaining claims against Ranger are premature at this stage of the proceedings.
IT IS THEREFORE ORDERED that
(1) defendants' motion to dismiss claim two be, and the same hereby is, GRANTED;
(2) defendants' motion to dismiss the complaint with respect to defendant Riverstone be, and the same hereby is, GRANTED; and
(3) with respect to all other defendants and/or claims, defendants' motion to dismiss be, and the same hereby is, DENIED.
Plaintiff is given 30 days from the date of this order to file an amended complaint consistent with this order.