Kazenercom Too v. Ibar Development, LLC

MEMORANDUM

We address three related appeals arising from an asset purchase transaction between Kazenercom TOO (“Kazenereom”) and its affiliates on one hand, and Turan Petroleum, Inc. (“Turan”) and its affiliates on the other.

I

Kazenercom and its affiliates appeal the district court’s dismissal with prejudice of their Verified Second Amended Complaint (“SAC”) and Verified Amended Third-Party Complaint (“ATPC”) pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e). We review the Rule 12(e) dismissals for abuse of discretion, and review de novo the Rule 12(b)(6) dismissals. We vacate the dismissals and remand -with leave to amend.

In dismissing the complaints pursuant to Rule 12(e), the district court stated that “even if dismissal is not warranted under Rule 41(b), it is nonetheless warranted, at a minimum, under Rule 12(e).” In so concluding, the district court committed legal error by failing to consider whether dismissal was warranted under Federal Rule of Civil Procedure 41(b). See McHenry v. Renne, 84 F.3d 1172 , 1179 (9th Cir.1996); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (“In determining whether to dismiss a case for failure to…