Cellars

MEMORANDUM AND ORDER

Now before the Court is defendants’ third motion to dismiss plaintiffs Complaint. On two prior occasions, plaintiff has amended its Complaint with leave of the Court.

BACKGROUND

Plaintiff, Margarita Cellars, produces blended wine alcohol cocktails. Plaintiff contracted with defendant Pacific Coast Packaging (“Pacific”), a distributor, to supply Margarita Cellars with clear plastic bottles to package its product. Plaintiff alleges that the bottles supplied by Pacific on September 21, 1996 were defective because they bulged when filled.

In addition to Pacific, plaintiff has named two other corporate defendants in this action. Defendant Johnson Controls (“JC”) manufactured the bottles that Pacific supplied to plaintiff. JC shipped the bottles directly to plaintiff. Defendant Schmalbach-Lubeca (“S-L”) purchased a division of JC after the alleged breach. Plaintiff alleges that, at all times relevant to this action, S-L was in either direct or constructive control of JC’s actions. Complaint 1124.

This action was originally filed in state court, and was removed to federal court by defendants on March 16, 1999. Defendants moved to dismiss the initial Complaint,…