1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BERKLEY ASSURANCE CO., et al., No.: 1:22-cv-00904-ADA-SAB 12 Plaintiffs, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS AND GRANTING,

13 v. IN PART, AND DENYING, IN PART,

DEFENDANT OLAM AMERICAS’ MOTION

14 OLAM AMERICAS, INC., et al., TO DISMISS WITHOUT LEAVE TO

AMEND SECOND CAUSE OF ACTION

15 Defendants. (ECF Nos. 27, 40, 56, 57) 16

17 18 On February 8, 2023, Defendant Olam Americas, Inc. (“Olam”), refiled its motion to 19 dismiss as applied to the first amended complaint. (ECF No. 40.) The motion was referred to a 20 United States Magistrate Judge for the preparation of findings and recommendations and/or other 21 appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 41.) 22 On June 28, 2023, the Magistrate Judge issued findings and recommendations, 23 recommending that Olam’s motion to dismiss be granted in part and denied in part. (ECF No. 24 56.) Specifically, the Magistrate Judge recommended Defendant’s motion to dismiss the second 25 cause of action for breach of contract (third-party beneficiary) be granted without leave to amend; 26 the motion to dismiss the fifth claim for relief (breach of implied warranty of merchantability) 27 and seventh claim for relief (breach of implied warranty of fitness for particular purpose) be 28 denied; and the motion to dismiss the tenth cause of action (restitution based on quasi-contract 1 (unjust enrichment)) be denied. (ECF No. 56.) The findings and recommendations contained 2 notice that the parties had fourteen days within which to file objections. (Id. at 1, 34.) Plaintiffs 3 filed objections on July 12, 2023. (ECF No. 57.) Defendants have not filed objections or 4 otherwise contacted the Court, and the deadline to do so has passed. 5 Plaintiffs first argue that the Court should not deem their opposition to the motion to 6 dismiss waived due to Plaintiffs’ counsel’s failure to appear at the scheduled motion hearing. 7 (ECF No. 57 at 2–3.) The Court notes that the Magistrate Judge appropriately considered all 8 moving papers, including Plaintiffs’ opposition, in issuing the findings and recommendations. 9 Therefore, Plaintiffs’ argument has no impact on the Court’s consideration of the Magistrate 10 Judge’s recommendations. 11 Second, Plaintiffs ask the Court to deny the motion to dismiss Plaintiff’s second claim and 12 allow Plaintiffs to conduct discovery to support their allegation that a motivating factor of the 13 contract at issue in this case was to benefit Plaintiff Arte Sano as a third-party beneficiary. (Id. at 14 3–4.) They claim that, because the contract was between Defendants Olam and Smirk’s, all 15 information regarding the conversations and circumstances surrounding the negotiation of 16 contract terms is in the sole possession of Defendants. (Id. at 4.) The Court is not persuaded. 17 First, this is the first time Plaintiffs have raised this argument. See Syed v. M-I, L.L.C., No. 1:12- 18 CV-1718 AWI MJS, 2014 WL 6685966, at *7 (E.D. Cal. Nov. 26, 2014) (“A district court has 19 discretion to consider or decline new arguments raised for the first time in an objection to a 20 findings and recommendations.”). Moreover, Plaintiffs offer no reason for the Court to believe 21 that discovery would uncover evidence that Defendants intended to provide third-party 22 beneficiaries with a right to sue despite the express provisions to the contrary in the contract. In 23 forming the recommendation, the Magistrate Judge properly considered the allegations in the first 24 amended complaint, the briefing of both parties, and multiple express terms in the contract. (ECF 25 No. 56 at 16.) Plaintiffs’ unsupported argument amounts to a request to conduct a fishing 26 expedition, and it does not convince the Court that the Magistrate Judge erred in recommending 27 dismissal of Plaintiff’s second claim without leave to amend. 28 /// 1 Finally, Plaintiffs urge the Court to approve the Magistrate Judge’s recommendation to 2 | deny the motion to dismiss Plaintiffs tenth claim for reasons that the Magistrate Judge did not 3 | consider. Because the Court agrees that the Magistrate Judge used proper analysis in forming the 4 | findings and recommendations, there is no need for the Court to address Plaintiffs’ argument. 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 6 | de novo review of this case. Having carefully reviewed the entire file, including Plaintiffs’ 7 | objections, the Court concludes that the findings and recommendations are supported by the 8 | record and proper analysis. 9 Accordingly, 10 1. The findings and recommendations issued on June 28, 2023, (ECF No. 56), are 11 adopted in full; 12 2. Defendant Olam’s motion to dismiss the second cause of action for breach of 13 contract (third party beneficiary) is granted without leave to amend; 14 3. Defendant Olam’s motion to dismiss the fifth claim for relief (breach of implied 15 warranty of merchantability) and seventh claim for relief (breach of implied 16 warranty of fitness for particular purpose) is denied; 17 A, Defendant Olam’s motion to dismiss the tenth cause of action (restitution based on 18 quasi-contract (unjust enrichment)) is denied; and 19 5. Defendant Olam shall file an answer to the first amended complaint within twenty- 20 one (21) days of the date of entry of this order. 21 22 93 | SO ORDERED. 24 Dated: _ September 7, 2023 35 UNITED f£TATES DISTRICT JUDGE

26 27 28