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Def.’s Reply ISO Mot. To Dismiss and Strike 

Case No. 3:17-cv-00081 EDL 

David C. Kiernan (State Bar No. 215335)

dkiernan@JonesDay.com 

Brian D. McDonald (State Bar No. 224201) 

bdmcdonald@JonesDay.com 

Daniel L. Corbett (State Bar No. 286103) 

dcorbett@jonesday.com 

JONES DAY 

555 California Street, 26th Floor 

San Francisco, CA 94104 

Telephone: +1.415.626.3939 

Facsimile: +1.415.875.5700 

Attorneys for Defendant 

THE SHERWIN-WILLIAMS COMPANY 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

MATSON NAVIGATION COMPANY, 

INC., 

Plaintiff, 

v. 

THE SHERWIN-WILLIAMS COMPANY, 

Defendant. 

Case No. 3:17-cv-00081 EDL

DEFENDANT’S REPLY IN SUPPORT 

OF MOTION TO DISMISS 

COMPLAINT AND TO STRIKE 

ALLEGATIONS 

Date: April 4, 2017 

Time: 9:00 a.m. 

Courtroom: E, 15th Floor 

Judge: Hon. Elizabeth D. Laporte 

Defendant The Sherwin-Williams Company (“Sherwin-Williams”) respectfully submits 

this Reply brief in support of its Motion to Dismiss and to Strike Allegations in Plaintiff Matson 

Navigation Company, Inc.’s (“Matson”) Complaint. 

I. INTRODUCTION 

Plaintiff’s Opposition fails to rebut the fundamental points in Defendant’s Motion. 

Plaintiff’s claim for breach of contract for services fails as a matter of law. Put simply, 

the documents Plaintiff chose to attach to its Complaint contradict the allegations in that same 

Complaint. The attached Purchase Orders, which Plaintiff alleges are the contracts for the 

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Def.’s Reply ISO Mot. To Dismiss and Strike

Case No. 3:17-cv-00081 EDL 

alleged services, reference no such services. Plaintiff certainly was not required to attach 

documents to its Complaint, but having done so, the Court cannot ignore blatant contradictions 

between those documents and Plaintiff’s allegations. 

Plaintiff’s negligent misrepresentation claim is deficient because the Complaint contains 

only the barest of allegations that fail to meet the minimum pleading standard under Rule 8(a). 

Plaintiff must allege facts supporting the basic elements of negligent misrepresentation and 

cannot rely on mere recitation of legal elements to meet its burden. Plaintiff’s Opposition brief 

fails to identify those missing details in its Complaint, let alone offer to provide them in an 

amended pleading. 

Plaintiff’s Complaint is replete with immaterial and impertinent allegations supporting 

these two claims that should be stricken along with these claims. 

Finally, any claimed delay is a problem of Plaintiff’s own creation. In response to 

Defendant’s Motion, Plaintiff could have amended its complaint to try to meet its obligations and 

provide the basic factual information required by the Federal Rules. Rather, Plaintiff chose not to 

make an attempt, presumably because it cannot fix the fatal defects. 

The Court should grant Sherwin-Williams’ Motion, dismiss Matson’s claims for breach of 

contract for services and negligent misrepresentation, and strike the immaterial and impertinent 

allegations supporting the dismissed claims.

II. MATSON HAS FAILED TO STATE A CLAIM FOR BREACH OF CONTRACT 

FOR SERVICES. 

Matson’s breach of contract for services claim should be dismissed for failure to state a 

claim upon which relief may be granted because Matson has not properly pleaded two of the 

elements of that claim: that a contract for services exists and that Sherwin-Williams breached it. 

Matson alleges that the purchase orders attached as Exhibit A to its Complaint (the “Purchase 

Orders”) are the contracts which Sherwin-Williams allegedly breached. Compl. ¶¶ 5, 6, 20, 23. 

But those allegations are contradicted by the Purchase Orders themselves, which on their face are 

contracts for the provision of paint supplies only, not services. Therefore, for the purposes of this 

Motion, the Court must disregard Matson’s allegations regarding a contract for services. Johnson 

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Def.’s Reply ISO Mot. To Dismiss and Strike

Case No. 3:17-cv-00081 EDL 

v. Fed. Home Loan Mortg. Corp., 793 F.3d 1005, 1007 (9th Cir. 2015); Sprewell v. Golden State 

Warriors, 266 F.3d 979, 988 (9th Cir.), op. amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 

2001); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 754 (7th Cir. 2002). Without 

those allegations, Matson has failed to plead the elements of its claim. 

Matson mischaracterizes its Complaint when it contends in its Opposition that “Matson 

does not plead that the Purchase Orders were the only documents evidencing the agreement 

between the parties that Defendant paint the MANULANI.” Matson’s Opposition to Defendant’s 

Motion to Dismiss and to Strike (“Opp’n Br.”) at 2:24-25 (ECF No. 15). In fact, Matson did 

exactly that. The Complaint alleged “Matson issued Purchase Orders 0167072 and 0167890 

(“Matson Purchase Orders”), respectively, to Sherwin Williams [sic] to paint the hull of the 

Matson container ship MANULANI[.]” Compl. ¶ 5. The Complaint further alleged “[p]ursuant 

to the Matson Purchase Orders, the Vessel was dry docked for the painting of the hull ....” Id.

¶ 6 (emphasis added). Further, “Matson and Sherwin Williams [sic] contracted for the painting 

of the hull of the Matson container ship MANULANI through the issuance of Matson’s 

Purchase Orders 0167072 and 1067890.” Id. ¶ 20 (emphasis added). In these passages, Matson 

alleges that the Purchase Orders attached to the Complaint are the contract between SherwinWilliams and Matson for painting the Vessel, not merely evidence of such a contract. 

Moreover, the only breach alleged in the Complaint is a breach of the Purchase Orders. 

Matson alleged that “[t]he Terms and Conditions of the Matson Purchase Orders require Sherwin 

Williams [sic] to indemnify Matson for any cost resulting from a defect in the merchandise or 

work and the failure of Sherwin Williams [sic] to perform any covenants on its part to be 

performed under the Terms and Conditions.” Id. ¶ 23. Matson now argues in its Opposition that 

Sherwin-Williams breached a different contract, which Matson contends is merely evidenced by 

the Purchase Orders. Opp’n Br. at 3:1-3. But Matson did not make any such allegation in its 

Complaint, and should not be permitted to amend its Complaint through its Opposition brief. 

Matson also applies the wrong legal standard in its Opposition brief. Matson argues that it 

has satisfied Rule 8(a)’s “permissive pleading standard,” Opp’n Br. at 3:17-18, and that it was not 

required to attach the contract to its Complaint, id. at 3:4-5. But Sherwin-Williams’ Motion is 

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Def.’s Reply ISO Mot. To Dismiss and Strike

Case No. 3:17-cv-00081 EDL 

under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The Motion is 

based on Matson’s failure to plead two elements of a breach of contract claim, after allegations 

contradicted by the exhibits to the Complaint are disregarded. Sprewell, 266 F.3d at 988; 

Thompson, 300 F.3d at 754; Johnson, 793 F.3d 1005 at 1007. And while it is correct that Matson 

need not have attached the alleged contracts to its Complaint, the Court may not ignore the fact 

that Matson did so, and that the Purchase Orders contradict Matson’s allegations. Id.

III. MATSON HAS FAILED TO FACTUALLY PLEAD THE ELEMENTS OF A 

NEGLIGENT MISREPRESENTATION CLAIM AS REQUIRED UNDER RULE 

8(A). 

Matson supports its negligent misrepresentation claim with citations to materials and 

information outside of the complaint, and conclusory allegations rather than facts. Therefore, 

Matson has failed to plead a factual basis supporting a plausible claim for relief, as required 

under Rule 8(a). Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007); Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 

(9th Cir. 2014). Matson’s claim for negligent misrepresentation should be dismissed.

In its Opposition, Matson merely rehashes the sparse factual allegations contained in the 

Complaint, and contends that is enough under Rule 8(a). Opp’n Br. at 4:1-17. It is not. Those 

allegations fail to provide even the minimum level of factual detail required under Rule 8(a), 

including which statements by Sherwin-Williams’ representatives allegedly were false or 

misleading, who allegedly made those statements, when and to whom, who relied on the 

misrepresentations and whether such reliance was reasonable, and what was false or misleading 

about them. 

Indeed, it is unclear how the factual allegations repeated in Matson’s Opposition even 

relate to the alleged misrepresentation. For example, Matson alleges that the proper painting 

process is contained in a Sherwin-Williams data sheet, and that Sherwin-Williams employees 

instructed the shipyard to deviate from that process. Compl. ¶10. But Matson does not allege 

whether the misrepresentation itself was contained in the data sheet, the instructions to deviate 

from the data sheet, or something else. Matson alleges that the paint was applied in three layers, 

epoxy paint, tie coat and surface coat, id. ¶ 9, but does not allege whether this process is the 

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Def.’s Reply ISO Mot. To Dismiss and Strike

Case No. 3:17-cv-00081 EDL 

allegedly incorrect “procedure and sequence” or whether the alleged misrepresentation concerned 

something else. 

Absent these barest of factual details, Matson asks the Court to infer for the purposes of 

this Motion that because Sherwin-Williams supervised application of the paint, and the paint 

failed, Sherwin-Williams must have misrepresented something about the painting process. This 

is exactly the kind of inference from the merely possible to the plausible that the Supreme Court 

and Ninth Circuit have held is not permitted under Rule 8. Iqbal, 556 U.S. at 681-82; Twombly, 

550 U.S. at 556; Eclectic Props., 751 F.3d at 997. 

IV. THE COURT SHOULD STRIKE THE IMMATERIAL AND IMPERTINENT 

ALLEGATIONS FROM THE COMPLAINT. 

The Court should grant Sherwin-Williams’ Motion to Strike for the same reasons as its 

Motion to Dismiss. Matson’s allegations regarding the existence and breach of a contract for 

services are contradicted by the Purchase Orders, which Matson alleges are the contracts that 

Sherwin-Williams breached. Compl. ¶¶ 5, 6, 20, 23. And Matson’s conclusory allegations about 

a misrepresentation by Sherwin-Williams are so devoid of factual content that they fail to satisfy 

the Rule 8(a) pleading standard. As such, these allegations are immaterial and impertinent and 

should be stricken from the Complaint. Fed. R. Civ. P. 12(f); Fantasy, Inc. v. Fogerty, 984 F.2d 

1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994); Lawson v. Gen. Elec. 

Co., No. 15-CV-02384-TEH, 2015 WL 7710296, at *1 (N.D. Cal. Nov. 30, 2015). 

V. MATSON’S REQUEST FOR LEAVE TO AMEND 

Sherwin-Williams does not oppose Matson’s request for leave to amend its Complaint in 

the event that the Court grants Sherwin-Williams’ Motion, provided that such an amendment is 

limited to curing the defects identified by Sherwin-Williams in its Motion. 

VI. CONCLUSION 

For the foregoing reasons, Sherwin-Williams respectfully requests that the Court grant 

Sherwin-Williams’ Motion to Dismiss the Complaint and to Strike Allegations. 

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Def.’s Reply ISO Mot. To Dismiss and Strike

Case No. 3:17-cv-00081 EDL 

Dated: March 17, 2017 Respectfully submitted, 

JONES DAY 

By: /s/ Brian D. McDonald 

Brian D. McDonald 

Counsel for Defendant 

THE SHERWIN-WILLIAMS COMPANY 

NAI-1502554784 

Case 3:17-cv-00081-EDL Document 16 Filed 03/17/17 Page 6 of 6