United States District Court, D. Oregon, Eugene Division
KNG, INC., d/b/a KLUPENGER NURSERIES INC. Plaintiff,
FIRST BANK & TRUST, d/b/a FIRSTLINE FUNDING GROUP Defendant.
OPINION AND ORDER
Aiken United States District Judge.
action, plaintiff KNG, Inc. ("KNG") asserts a
number of claims related to the alleged breach of a series of
shipping contracts. Plaintiff claims relief for unjust
enrichment, money had and received, and common law
indemnification. Defendant First Bank & Trust
("First Bank") moves to dismiss all of plaintiffs
claims pursuant to Fed.R.Civ.P. 12(b)(6) under the doctrines
of claim and issue preclusion, (doc. 3). For the reasons set
forth below, defendant's motion is granted, and this
action is dismissed.
purposes of considering the motion to dismiss, plaintiffs
allegations in its complaint are accepted as
true. Plaintiff is a nursery and ornamental
plant distributor incorporated in the State of Oregon. Prior
to 2012, Plaintiff entered into a series of shipping
contracts with United Distribution Services, Inc.
("UDS") who arranged for transportation of
plaintiff's goods throughout the United States. Plaintiff
contracted for compensation to UDS through defendant First
Bank. Under the terms of the contract, either
UDS or First Bank was to pay shipping agents on behalf of
plaintiff. When plaintiff discovered that neither UDS nor
First Bank had made certain payments to plaintiffs shipping
vendors as proscribed, plaintiff made repeated demands that
the funds be remitted or paid to the shipping vendors.
Plaintiff alleges that those defendants did not remit the
funds or tender payments to the shipping vendors. Further,
neither UDS nor First Bank provided plaintiff with requested
documentation regarding the disputed transactions and
disposition of the funds tendered to defendants by plaintiff.
November 2012, plaintiff instituted an action (the "2012
suit") against UDS and First Bank in Multnomah County
Circuit Court. Plaintiff included in the action Bardue
Transportation Services, Inc. ("BTS"), an alleged
continuation business of UDS, Baxter Baily & Associates,
Inc. ("BBA"), an assignee of two debts relevant to
the disputed contracts, and Lukas Bardue
("Bardue"), the alleged owner of UDS and BBA.
Plaintiff raised claims for breach of contract against UDS,
BTS, and Bardue, breach of fiduciary duty and indemnification
against UDS, BTS, Bardue, and First Bank, sought declaratory
judgment against all defendants, and declaratory judgment for
veil piercing against UDS, BTS, and Bardue. Plaintiff claimed
economic damages in the sum of $95, 000 plus prejudgment
interest of 9% per annum from July 1, 2012 until paid in
full. Id. at ¶ 35.
February 27, 2015, the Multnomah County Circuit Court issued
a default judgment in favor of plaintiff on plaintiffs claims
for breach of contract, breach of fiduciary duty,
indemnification/contribution, and veil piercing as against
defendants Bardue, UDS, and BTS. Monetary damages were
awarded to plaintiff against Bardue, UDS, and BTS in the
amount of $95, 000 with costs pursuant to Oregon Rules of
Civil Procedure ("ORCP") 68. Stein Decl. Ex. 3,
3:5, 3:9-10. The judgment also entitled plaintiff to
pre-judgment interest in the amount of $20, 918.21 and
post-judgment interest of 9% per annum from entry of judgment
until paid in full. Id. at 3:6-8. On June 21, 2016,
more than one year after the default judgment was entered,
plaintiff filed a motion to correct the judgment pursuant to
ORCP 71A. Plaintiff averred that, although First Bank was
subject to the judgment previously submitted to the court for
signature, that judgment was never signed and First Bank was
omitted from the final judgment. Court records reveal that
the motion was neither granted nor denied by the circuit
court. No. additional actions have been taken by the parties
with respect to the judgment against Bardue, UDS, and BTS.
September 2017, plaintiff initiated another action (the
"2017 suit") against defendant asserting claims for
unjust enrichment and money had and received. Plaintiff again
claimed economic damages in the sum of $95, 000 plus
prejudgment interest of 9% per annum from My 1, 2012 until
paid in full, attorney fees and associated costs, and any
equitable relief granted at the court's discretion. Stein
Decl., Ex. 6, ¶ 12.
Circuit Court dismissed the action for failure to prosecute
on December 28, 2017. Plaintiff filed a motion to vacate the
judgment of dismissal on January 26, 2018. Following briefing
by both parties and a hearing, plaintiffs motion was denied.
filed the present Complaint before this Court on January 30,
2018. The facts alleged arise from the same transactions
underlying plaintiffs claims in both the 2012 and 2017 suits,
namely, that plaintiff entered into a series of contracts
with UDS and that defendant, acting as the factoring agent,
failed to pay the shipping agents on behalf of plaintiff.
Plaintiff claims that defendant's nonpayment of the
shipping fees entitle it to relief for unjust enrichment,
money had and received, and indemnification in money damages
amounting to $95, 000 plus prejudgment interest from July 1,
2012 until paid in full. Id. at ¶ 8, 11, 12,
19. Defendant now moves this Court to dismiss the action
under the doctrines of claim and issue preclusion.
must dismiss an action when the plaintiff "fail[s] to
state a claim upon which relief can be granted."
Fed.R.Civ.P. 12(b)(6). A court considering a motion to
dismiss for failure to state a claim construes the complaint
in favor of the plaintiff and takes the complaint's
factual allegations as true. Daniels-Hall v. Nat'l
Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
"[F]or a complaint to survive a motion to dismiss, the
non-conclusory 'factual content,' and reasonable
inferences from that content, must be plausibly suggestive of
a claim entitling the plaintiff to relief." Moss v.
U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw a reasonable
inference that the defendant is liable for the misconduct
alleged," Iqbal, 556 U.S. at 678.
"Dismissal under Rule(12)(b)(6) is proper only when the
complaint either (1) lacks a cognizable theory or (2) fails
to allege sufficient facts to support a cognizable legal
theory." Zixiang Li v. Kerry, 710 F.3d 995, 999
(9th Cir. 2013).
asserts that claim preclusion requires dismissal of the
present action because the claims asserted here are based on
the same factual transactions underlying both the 2012 and
the 2017 suits. Defendant further contends that the 2015
general default judgment in plaintiffs favor constitutes a
final judgment precluding ...