Ttcp Energy Finance Fund Ii, Llc v. Ralls Corporation et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.October 4, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TTCP ENERGY FINANCE FUND II, LLC Plaintiff, v. RALLS CORPORATION, SANY AMERICA, INC., SANY GROUP CO., LTD., and SANY HEAVY ENERGY MACHINERY CO. LTD., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civ. Act. No. 1:16-cv-03287-TCB U.S. DEFENDANTS’ MOTION TO DISMISS COMPLAINT COME NOW Defendants Ralls Corporation (“Ralls”) and Sany America, Inc. (“Sany America,” together, the “U.S. Defendants”) and file the U.S. Defendants’ Motion to Dismiss Complaint (the “Motion”). The Motion is based upon the memorandum of law in support of the Motion, filed contemporaneously herewith. WHEREFORE, the U.S. Defendants pray that this Court: a) Dismiss the Complaint filed instituting this action based upon failure to state a claim upon which relief can be granted; and Case 1:16-cv-03287-TCB Document 15 Filed 10/04/16 Page 1 of 3 2 b) Award the U.S. Defendants such other and further relief as this Court deems just and appropriate, premises considered. Dated: October 4, 2016 Respectfully submitted, LOCKE LORD LLP s/ Bryan G. Harrison Bryan G. Harrison Terminus 200 3333 Piedmont Road NE, Suite 1200 Atlanta, Georgia 30305 Phone: (404) 870-4600 Fax: (404) 806-5617 Attorneys for Defendants Ralls Corporation, and Sany America, Inc. Case 1:16-cv-03287-TCB Document 15 Filed 10/04/16 Page 2 of 3 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TTCP ENERGY FINANCE FUND II, LLC Plaintiff, v. RALLS CORPORATION, SANY AMERICA, INC., SANY GROUP CO., LTD., and SANY HEAVY ENERGY MACHINERY CO. LTD., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civ. Act. No. 1:16-cv-03287-TCB CERTIFICATE OF SERVICE I hereby certify that on October 4, 2016, I caused a copy of the within and foregoing U.S. DEFENDANTS’ MOTION TO DISMISS COMPLAINT to be filed via the Court’s ECF system, which caused service to be effectuated upon all counsel of record in this action. /s/ Bryan G. Harrison Bryan G. Harrison Case 1:16-cv-03287-TCB Document 15 Filed 10/04/16 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TTCP ENERGY FINANCE FUND II, LLC Plaintiff, v. RALLS CORPORATION, SANY AMERICA, INC., SANY GROUP CO., LTD., and SANY HEAVY ENERGY MACHINERY CO. LTD., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civ. Act. No. 1:16-cv-03287-TCB MEMORANDUM IN SUPPORT OF U.S. DEFENDANTS’ MOTION TO DISMISS COMPLAINT Plaintiff’s Complaint stems from its purchase of a wind power generation project located in Huerfano County, Colorado (the “Project”). In total, Plaintiff’s Complaint names four defendants and alleges four causes of action spanning five “Counts.” Two of the causes of action-for fraudulent inducement and negligent misrepresentation-fail to meet the heightened pleading requirements established by Federal Rule of Civil Procedure (“Rule”) 9(b) because plaintiff does not identify any of the necessary facts to support those Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 1 of 18 2 claims, and thus fails to state a claim as to any defendant under Rule 12(b)(6). The remaining two causes of action-breach of contract and breach of warranty-span three “counts” asserted against “Defendants” as a whole and thus fail as to Sany America, Inc. (“Sany America”), a defendant who is not a party to any contract with Plaintiff. For all of these reasons, Defendants Ralls Corporation (“Ralls”) and Sany America (together, the “U.S. Defendants”) submit this Memorandum in Support of the U.S. Defendants’ Motion to Dismiss Complaint.1 PROCEDURAL BACKGROUND On August 31, 2016, Plaintiff TTCP Energy Finance Fund II, LLC (“TTCP”) filed its Complaint instituting this action, alleging that this Court has subject matter jurisdiction based upon 28 U.S.C. § 1332(a). [D.I. #1, ¶ 7]. Thereafter, this Court issued an Order, requiring Plaintiff to show by September 13 that complete diversity exists to establish subject matter jurisdiction as the Complaint fails to aver the citizenship of the members of TTCP, which is necessary to establish diversity. [D.I. #6]. Plaintiff responded on September 7, filing its Statement of Jurisdiction that asserted Plaintiff has two 1 The remaining defendants, Sany Group Company, Ltd. (“Sany Group”) and Sany Heavy Energy Machinery Co., Ltd. (“Sany Heavy”), have not been served with citation and therefore have not joined in the U.S. Defendants’ Motion. Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 2 of 18 3 members, both of whom are individuals and Texas citizens, and that, accordingly, this Court has subject matter jurisdiction pursuant to 28 U.S.C. 1332. [D.I. #7]. On September 12, Plaintiff filed an Amended Statement of Jurisdiction. [D.I. #8]. This amendment explained that Plaintiff had only one member, Tamra-Tacoma Capital Partners, LLC and that entity in turn had two members, the individuals previously identified as the members of Plaintiff who are citizens of Texas. [D.I. #8]. Again, Plaintiff asserted that this Court had subject matter jurisdiction under 28 U.S.C. § 1332. PLAINTIFF’S COMPLAINT The Complaint generally centers around Plaintiff’s purchase of the Project. [D.I. #1, ¶ 1]. The named defendants are the two U.S. Defendants, Ralls and Sany America, as well as two Chinese corporations that have not yet been served, Sany Group Co., Ltd. (“Sany Group”) and Sany Heavy Energy Machinery Co., Ltd. (“Sany Heavy”). Throughout the Complaint Plaintiff refers indiscriminately to “Sany,” which the U.S. Defendants assume refers to Sany America, Sany Group, and Sany Heavy collectively. Similarly, the Complaint regularly lumps all four defendants into collective allegations against “Defendants.” For consistency, “Sany” as used herein refers to the three Sany Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 3 of 18 4 entities collectively, while “Defendants” refers to all four defendants collectively. Among other things, the Complaint asserts claims for fraudulent inducement, negligent misrepresentation, breach of contract, and breach of warranty against all Defendants. 2 [D.I. #1]. The claims for both fraud and negligent misrepresentation assert simply that either “Defendants made false representations . . .” or “Defendants negligently made false representations . . ..” [D.I. #1, ¶¶ 40, 48]. Plaintiff contends that it received promotional material from “Defendants” to induce it to invest in the project. [Id. ¶ 12]. However, the specifics of any alleged misrepresentations are lacking. In particular, Plaintiff generally alleged only a few relevant facts: • “Sany” provided wind assessments that estimated the Project’s annual production capacity at approximately 22GWh and a 32+% ‘capacity factor’ (a helpful tool in measuring performance). [Id.]. 2 Despite naming all Defendants in Plaintiff’s breach of contract and breach of warranty claims, such claims are alleged to only actually relate to Defendant Ralls. Specifically, the Complaint focuses on Ralls’ purported breach of its obligations under a maintenance and warranty service agreement and a forbearance and settlement agreement (although Plaintiff has chosen to assert such claims in three separate counts of the Complaint-Counts 3, 4 and 5). Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 4 of 18 5 • Ralls, via Sany Heavy Energy Machinery Co., Ltd., provided unspecified, “Sany”-branded literature and power point documents describing the Project’s wind resource potential in great detail. [Id. ¶11]. • When questioned about this shortfall, Ralls represented that the 2014 production was limited because of intentional curtailment of the project by Ralls due to USIRE’s insolvency. [Id. ¶14]. • Someone produced a “Sany”-branded production analysis [containing unspecified “false” information] on April 28, 2016 (after Plaintiff entered into the Forbearance and Settlement Agreement. [Id. ¶18]. Plaintiff also alleges that on March 22, 2013, it entered into a Maintenance and Warranty Service Agreement with Ralls (the “MWSA”). [D.I. #1, ¶ 21 and Ex. G]. On September 16, 2014, Plaintiff alleges it entered into a Forbearance and Settlement Agreement (the “Agreement”) with Ralls and two non-parties, U.S. Innovative Renewable Energy (“USIRE”) and New Centennial power n/k/a Huerfano River Wind (“HRW”), among others. [D.I. #1, ¶¶ 9, 13 and Ex. D]. Notwithstanding the fact that no Sany entity is alleged to be a part to the Agreement or the MWSA, Plaintiff alleges that “Defendants” as a whole Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 5 of 18 6 breached the Agreement and the MWSA. [D.I. #1, ¶¶ 53-59]. Likewise, Plaintiff alleges as a whole that “Defendants” breached warranties to Plaintiff based on the Agreement and the MWSA without so much as an allegation that any Sany entity is a part of such agreements. [D.I. #1, ¶¶ 60-78]. ARGUMENT The Complaint is a classic example of the improper shotgun approach to pleading that this Court has repeatedly dismissed. The Complaint asserts claims against Ralls and Sany America for (i) fraudulent inducement and negligent misrepresentation and (ii) breach of contract, but the Complaint wholly fails to identify the conduct of each defendant that serves as the basis for each claim. Accordingly, the Complaint is wholly deficient and should be dismissed for failing to state a claim.3 As an initial matter, the Complaint fails to satisfy Plaintiff’s requirements to plead misrepresentation with particularity. Indeed, the Complaint is completely devoid of the necessary “who, what, when, where, and how” averments necessary to satisfy the particularity requirement of Federal Rule of 3 Indeed, it is utterly impossible to ascertain the bases for each of Plaintiff’s counts in the Complaint as each count “incorporates by reference all allegations of this Complaint.” [D.I., #1, ¶¶ 39, 47, 53, 60, 70, 79, and 82]. Such incestuously defined claims clearly violate Fed. R. Civ. P 8(a)’s requirement for “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P 8(a)(2). Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 6 of 18 7 Civil Procedure 9(b). This failure requires the dismissal of Counts 1 and 2 of the Complaint. Further, Plaintiff seeks to assert breach of contract claims and breach of warranty claims against Sany America, even though Sany America is not alleged to be a party to a contract with Plaintiff. The lack of any contract in which Plaintiff is in privity with Sany America is fatal to Plaintiff’s contract-based claims, requiring dismissal of Counts 3, 4, and, 5 as asserted against Sany America. I. STANDARD OF REVIEW FOR DEFENDANTS’ MOTION TO DISMISS UNDER RULES 12(B)(6) AND 9(B). To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff’s complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. SEC v. Mannion, 789 F. Supp. 2d 1321, 1330 (N.D. Ga. 2011) (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)); see also Advanced Tech. Servs., Inc. v. Km Docs, LLC, No. 1:11-CV-3121, 2011 WL 5870545, at *1 (N.D. Ga. Nov. 21, 2011) (complaint should be dismissed under Rule 12(b)(6) if it appears that the facts alleged fail to state a plausible claim for relief.). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 7 of 18 8 inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). This standard requires more than the “mere possibility the defendant acted unlawfully.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009). Instead, “[t]he well-pled allegations must nudge the claim ‘across the line from conceivable to plausible.’ ” Id. (quoting Twombly, 550 U.S. at 570). Although factual allegations in a plaintiff’s complaint are assumed to be true and the plaintiff is given the benefit of reasonable factual inferences, mere labels and conclusions are insufficient. SEC, 789 F. Supp. 2d at 1330; Twombly, 550 U.S. at 555. Thus, “unwarranted deductions of fact in [a plaintiff’s] complaint are not admitted as true.” Sinaltrainal, 578 F.3d at 1260. Essentially, the “complaint must contain enough facts to indicate the presence of the required elements.” Jenkins v. BAC Home Loan Servicing, LP, No. 7:11-cv-73, 2011 WL 4543488, at *1 (M.D. Ga. Sept. 29, 2011) (emphasis added) (citing Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007)). Additionally, when a plaintiff’s complaint alleges fraud or sounds in fraud, the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) must be met to survive a motion to dismiss. Federal Rule of Civil Procedure 9(b) specifically requires that a party alleging fraud state with Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 8 of 18 9 particularity the circumstances constituting fraud. Mannion, 789 F. Supp. 2d at 1330; WESI, 509 F. Supp. 2d at 1358. This requirement protects potential defendants from incurring harm to their reputations from blanket, unfounded accusations of fraudulent conduct. Duracell, Inc. v. SW Consultants, Inc., 126 F.R.D. 571, 573 (N.D. Ga. 1989). Rule 9(b) also serves the purpose of alerting defendants to the “precise misconduct with which they are charged,” in addition to “protecting defendants against spurious charges of immoral and fraudulent behavior.” Georgia. Farm Bureau Mut. Ins. Co. v. Great Am. Excess & Surplus Ins. Co., No. 1:06-CV-0696, 2007 WL 757816, at *2 (N.D. Ga. Mar. 8, 2007). Therefore, a party must plead “the who, what, when, where, and how” of the alleged fraud. WESI, 509 F. Supp. 2d at 1358 (“The notion [of the Rule] is that a heightened pleading requirement imparts a note of seriousness and encourages a greater degree of pre-institution investigation by the plaintiff.”). This heightened pleading requirement also applies to claims of negligent misrepresentation. Dixon v. Allergan USA, Inc., 645 Fed. Appx. 930, 932 (11th Cir. 2016); see also Watts v. JPMorgan Chase Bank, Nat. Ass'n, 1:13-CV-00866-RWS, 2013 WL 3779152, at *3 (N.D. Ga. July 17, 2013) (noting that plaintiff’s fraudulent inducement and negligent misrepresentation claims arose from the same facts). Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 9 of 18 10 Although conditions of a person’s mind, such as intent and knowledge, may be alleged generally, “facts as to time, place, and substance of the defendant’s alleged fraud, specifically the details of the defendant’s allegedly fraudulent acts, when they occurred, and who engaged in them” must be pleaded with specificity. United States ex rel. Compton v. Circle B. Enters., Inc., No. 7:07-cv-32, 2010 U.S. Dist. LEXIS 22749, at *25 (M.D. Ga. Mar. 11, 2010). A claim that fails to comply with the requirements of Rule 9(b) must be dismissed. United States ex rel. Clausen v. Lab. Corp., 290 F.3d 1301, 1310 (llth Cir. 2002). Rule 9 thus requires Plaintiff to allege: (1) precisely what statements or omissions were made in which documents or oral representations; (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) them; (3) the content of such statements and the manner in which they misled the plaintiff; and (4) what the defendant obtained as a consequence of the fraud. Findwhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011); Am. Gen. Life & Accident Ins. Co. v. Ward, 530 F. Supp. 2d 1306, 1309-10 (N.D. Ga. 2008) (citing Clausen, 290 F.3d at 1310); see also Duracell, 126 F.R.D. at 574 (finding that Rule 9(b) “pleading requirements ... apply to [plaintiff’s] count” alleging a constructive fraud claim); see also Bivin-Hunter v. Wyndham Vacation Resorts, Inc., No. 1:09-cv-03465, 2010 WL 1409855, at *3 (N.D. Ga. Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 10 of 18 11 Mar. 30, 2010) (“the heightened pleading standards [] apply to negligent misrepresentation and fraud claims”). II. PLAINTIFF’S SHOTGUN PLEADING OF FRAUD FAILS TO SATISFY THE PARTICULARITY REQUIREMENT OF FED. R. CIV. P. 9. Under Georgia law, to state a claim for the common law tort of fraud Plaintiff must adequately plead five elements: (1) false representation by defendant; (2) with scienter, or knowledge of falsity; (3) with intent to deceive plaintiff or to induce plaintiff into acting or refraining from acting; (4) on which plaintiff justifiably relied; (5) with proximate cause of damages to plaintiff. WESI, LLC v. Compass Envtl., Inc., 509 F. Supp. 2d 1353, 1358 (N.D. Ga. 2007) (citing Ledford v. Smith, 618 S.E.2d 627, 634 (Ga. Ct. App. 2005)); see also Wolf v. Middleton, 700 S.E.2d 598, 602 (Ga. Ct. App. 2010) (fraud has five elements including a false representation or omission of material fact). Similarly, in order to state a claim for negligent misrepresentation, a plaintiff must allege that: (1) defendant supplied false information; (2) plaintiff reasonably relied on that false information; and (3) such reliance was the proximate cause of plaintiff’s injury. Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1288-89 (11th Cir. 2007) (citing Hardaway Co. v. Parsons, Brinckerhoff, Quade, & Douglas, Inc., 479 S.E.2d 727, 729 (Ga. 1997)). Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 11 of 18 12 Here, the Complaint utterly fails to plead its fraud or negligent misrepresentation claims with the requisite particularity. 4 Instead, the Complaint merely avers: (i) that some unidentified individual at some unspecified time and location represented that the 2014 production was limited because of intentional curtailment of the project by Ralls due to USIRE’s insolvency, (ii) that Plaintiff made continued requests for updated wind analysis, and (iii) that some unidentified individuals at some unspecified time and location provided Plaintiff with a Sany-branded production analysis containing unspecified “false” information. [D.I. #1, ¶ 18]. This is not enough to meet the general motion to dismiss standard under Iqbal and Twombly, let alone the heightened pleading standard under Rule 9(b). Among the specific deficiencies in Plaintiff’s Complaint are these: • “Sany,” provided wind assessments that estimated the Project’s annual production capacity at approximately 22GWh and a 32+% ‘capacity factor’. [D.I. #1, ¶ 12]. Plaintiff does not allege who provided the assessments, on whose behalf that individual acted, 4 The only alleged misrepresentation that Plaintiff avers with anything close to the requisite particularity is contained within an email attached as Exhibit G to the Complaint, although the email contains no misrepresentations of fact that would support Plaintiff’s fraud or negligent misrepresentation claims. Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 12 of 18 13 that the assessments were false, or that any defendant knew that the assessments they included false statements. • Sany Heavy Energy Machinery Co., Ltd. (which has not yet been served in this litigation), provided unspecified, “Sany”-branded literature and power point documents describing the Project’s wind resource potential in great detail. [Id. ¶ 12]. Plaintiff does not allege who provided the documents, who the documents were false, or that any defendant knew that the documents included false statements. • Ralls represented that the 2014 production was limited because of intentional curtailment of the project by Ralls due to USIRE’s insolvency. [Id. ¶ 14]. Plaintiff does not identify who made the statements, when they were made, that the statements were false, or that defendants knew that the representations were false. Moreover, Plaintiff admits that it entered into the Forbearance and Settlement Agreement on September 16, 2014; any alleged representations made after that date could not “induce” any action by plaintiff. Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 13 of 18 14 • Unidentified defendants, through one or more unidentified individuals at some unspecified time and location, produced a “Sany”-branded production analysis. Plaintiff does not identify who provided the document, state when plaintiff received it, identify any false representations in this document, or allege that any defendant was aware that any material representation in the document was false. Moreover, the representations were allegedly made on April 28, 2016, after Plaintiff entered into the Forbearance and Settlement Agreement and the warranty agreement. [Id. ¶18]. As the above deficiencies show, Plaintiff has made absolutely no attempt to differentiate among the Defendants, even going so far as to mask the lack of specificity in the pleadings by defining all of Sany America, Sany Group Co., Ltd., and Sany Heavy Energy Machinery Co., Ltd. as “Sany.” This “lumping” together of several defendants does not satisfy Rule 9(b)’s pleading requirement. See Techjet Innovations Corp. v. Kamal Benjelloun, 2016 WL 4942351, at *11 (holding “plaintiff lumped several defendants and therefore failed to identify with sufficient particularity ‘who’ exactly made the statements that they allege to be fraudulent’”). Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 14 of 18 15 Similarly, in Georgia Farm Bureau Mut. Ins. Co., this Court found that the plaintiffs’ fraud claim was insufficient under Rule 9(b) due to allegations that lacked particularity. 2007 WL 757816, at *3. The complaint identified numerous alleged misrepresentations that the defendant made to plaintiff by mail, telephone and wire communications. Id. The Georgia Farm Bureau plaintiffs even presented supporting affidavits to bolster the allegations in the complaint. However, this Court concluded that “such general statements [were] insufficient to satisfy the strict requirements of Rule 9(b).” Id. (emphasis added) (“Neither the complaint nor the affidavits states (1) precisely what statements were made in what documents or oral representations or what omissions were made or (2) the time and place of each statement and the person responsible for making (or, in the case of omissions, not making it) same.”). Id.; see also Bivin-Hunter, 2010 WL 1409855, at *3 (where “[p]laintiffs’ complaint [did] not relate the content of the alleged statements, who made them, or when” “[p]laintiffs’ complaint [was] woefully inadequate under the heightened pleading standards that apply to negligent misrepresentation and fraud claims”). As this Court has previously held and should now hold, “[c]onclusory allegations that a defendant’s conduct was fraudulent and deceptive are [in]sufficient to satisfy the rule.” WESI, 509 F. Supp. 2d at 1358; see also Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 15 of 18 16 Jenkins, 2011 WL 4543488, at *8 (“[u]nsupported by specific allegations,” plaintiff’s mere statement that “[d]efendants have engaged in multiple and numerous acts of fraud and deceit” is insufficient to maintain an action and must be dismissed) (emphasis added). Therefore, this Court should dismiss Counts 1 and 2 of Plaintiff’s Complaint for failing to allege fraud and negligent misrepresentation with particularity and thus failing to state a claim. III. PLAINTIFF’S BREACH OF CONTRACT CLAIMS MUST FAIL AGAINST SANY AMERICA. It is axiomatic that a party cannot be liable for breach of contract to which it is not a party. See, e.g., O.C.G.A. §9-2-20 (2014). As a general rule, an action on a contract, whether the contract is expressed, implied, by parol, under seal, or of record, shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agent. Id. (emphasis added). Here, it is not disputed that Ralls is the only defendant that has entered into any agreement with Plaintiff. Accordingly, Plaintiff’s claims for breach of contract (Count 3) cannot lie against Sany America and must be dismissed as to that defendant. Similarly, the causes of action for breach of warranty arise from Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 16 of 18 17 the same contract to which Sany America is not a party, so those claims (Counts 4 and 5) should also be dismissed.. CONCLUSION Based upon the foregoing, this Court should dismiss the Complaint. CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1D Pursuant to Local Rule 7.1D, I hereby certify that the foregoing has been prepared using one of the font and point selections approved by the Court in Local Rule 5.1C. This document was prepared using Times New Roman (14 point). Dated: October 4, 2016 Respectfully submitted, LOCKE LORD LLP s/ Bryan G. Harrison Bryan G. Harrison Terminus 200 3333 Piedmont Road NE, Suite 1200 Atlanta, Georgia 30305 Phone: (404) 870-4600 Fax: (404) 806-5617 Attorneys for Defendants Ralls Corporation, and Sany America, Inc. Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 17 of 18 18 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TTCP ENERGY FINANCE FUND II, LLC Plaintiff, v. RALLS CORPORATION, SANY AMERICA, INC., SANY GROUP CO., LTD., and SANY HEAVY ENERGY MACHINERY CO. LTD., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civ. Act. No. 1:16-cv-03287-TCB CERTIFICATE OF SERVICE I hereby certify that on October 4, 2016, I caused a copy of the within and foregoing MEMORANDUM IN SUPPORT OF U.S. DEFENDANTS’ MOTION TO DISMISS COMPLAINT to be filed via the Court’s ECF system, which caused service to be effectuated upon all counsel of record in this action. /s/ Bryan G. Harrison Bryan G. Harrison Case 1:16-cv-03287-TCB Document 15-1 Filed 10/04/16 Page 18 of 18