                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-1917
                                    ___________

Werner Enterprises, Inc.,             *
                                      *
          Appellant,                  *
                                      * Appeal from the United States
    v.                                * District Court for the
                                      * Western District of Missouri.
MNX Carriers, Inc.; Mark VII, Inc.,   *
                                      *
          Appellees.                  *
                                 ___________

                            Submitted: November 6, 1998
                                Filed: December 22, 1998

                                    ___________

Before RICHARD S. ARNOLD, HEANEY, and MAGILL, Circuit Judges.
                           ___________

MAGILL, Circuit Judge.

       This appeal arises from a dispute regarding liability for property loss resulting
from theft at a commercial storage site. In granting defendants' Rule 12(b)(6) motion
to dismiss, the district court1 concluded that under the written lease the landlord was
not responsible for the theft of plaintiff's property. We affirm.



      1
      The Honorable Robert E. Larsen, United States Magistrate Judge for the
Western District of Missouri, who presided with the consent of the parties pursuant to
28 U.S.C. § 636(c).
                                            I.

        Werner Enterprises, Inc. (Werner), a commercial transport company, entered
into a lease agreement with MNX Carriers, Inc. for twenty parking spaces in which to
park its tractors and trailers. Sometime between 6:00 a.m. on June 23, 1995 and 6:00
a.m. on June 24, 1995, two of plaintiff's trailers carrying brand name electronic
equipment of substantial value were stolen from MNX's parking facility. Werner
brought suit against MNX Carriers, Inc. and Mark VII, Inc.2 (collectively, MNX),
alleging negligence and breach of contract in connection with the loss. MNX filed a
motion to dismiss for failure to state a claim for relief, arguing it had breached no
common law duty or contractual duty to Werner.3 The district court granted the
motion, and Werner timely appealed only the ruling on its breach of contract claim.

                                           II.

      A complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of the claim that
would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Whether a complaint states a claim is a question of law that this Court reviews de
novo. County of St. Charles, Mo. v. Missouri Family Health Council, 107 F.3d 682,
684 (8th Cir. 1997).

       Werner contends that MNX is responsible for Werner’s loss because MNX’s
release of the trailers without first demanding identification constituted a breach of the
lease’s security provisions. The section of the lease governing security issues
provides:



      2
       Mark VII, Inc. is alleged to be the parent company of MNX Carriers, Inc.
      3
       The parties agree that the lease agreement is governed by California law.

                                           -2-
      Access

      4.     Lessee will have access to the Premises 24 hours per day, 7 days
      per week. All employees or agents of Lessee must present identification
      as agreed upon between Lessee and Lessor for such access to and from
      Premises, however, lessor will not be responsible for the acceptance or
      release of any property of lessee but reserves the right to limit access to
      premises to those without acceptable identification. Lessor's obligation
      for security of the premises shall be limited providing [sic] adequate
      fencing and lighting. Lessor will use reasonable care in its operation, use
      and maintenance of the Premises.

Lease § 4 (emphases added).

        Werner asserts that the clause reserving to MNX the "right to limit access to
premises to those without acceptable identification" imposes a duty on MNX to require
presentation of proper identification prior to allowing release of Werner's trailers.4
There are three fundamental reasons why Werner is wrong. First, the contract affords
MNX the privilege to limit access to its premises and require identification; it does not
impose a duty on MNX. Second, the references to identification in the Access section
of the lease relate only to access to MNX's premises, not to the release of its customers'
trailers. Third, to accept Werner's reading would render meaningless two clauses in
the lease.

       Werner confuses the concept of a right with the concept of a duty. A duty is an
obligation to do a thing; a right is a power or privilege to do a thing. Compare Black’s


      4
       Werner does not argue that MNX breached some extra-contractual agreement
regarding identification requirements for access. In fact, Werner does not even allege
there existed such an agreement. This argument would be ineffective in any event.
Because such an identification agreement would apply only to "employees or agents"
of Werner, not thieves, it would be inapplicable where, as here, property is stolen by
an unrelated third party.

                                           -3-
Law Dictionary 505 (6th ed. 1990) (defining duty as a “mandatory obligation to
perform”) with id. at 1323-24 (defining rights generally as “powers of free action”).
It should go without saying that MNX cannot simultaneously have the discretionary
power to demand a showing of identification and be obligated to demand such a
showing. Yet, this is precisely what Werner argues. The language of the lease could
not more clearly reflect the agreement of the parties to vest in MNX the discretion to
demand identification from Werner's employees. The lease affords MNX the "right"
to make such demands; it imposes no duty on MNX to do so.

       That MNX has no contractual duty to demand identification is further supported
by other pertinent lease provisions. Not only does the lease expressly limit MNX's
"obligation" for security of the premises to "adequate fencing and lighting," it also
provides that MNX "will not be responsible for the acceptance or release of any
property" of Werner. The only reasonable interpretation of the lease is that MNX's
duty of security did not include a duty to demand identification. Because the terms of
the lease are clear and unambiguous, see Jacobs v. Fire Ins. Exch., 227 Cal. App. 3d
584, 590 (1991) (noting contract is unambiguous where it can be interpreted in only
one reasonable way), we must enforce them. See Merrill & Seeley, Inc. v. Admiral
Ins. Co., 225 Cal. App. 3d 624, 630 (1990) (noting California courts construe contract
according to its clear and unambiguous terms).

       Even if MNX did have a duty to demand identification, this duty would apply
only to "access to and from [the] Premises," not to the release of the lessee's property.
Werner does not complain that it suffered damages as a result of MNX's failure to
exclude individuals from its premises. Rather, in its response to MNX’s Rule 12(b)(6)
motion Werner alleges MNX violated its contractual duties when it failed "to assure
that employees of plaintiff presented the proper identification prior to allowing release
of plaintiff's trailers." Opp. to Mot. to Dismiss at 6. Because the only damage
complained of arose from the release of the trailers, not MNX’s granting access to its
premises, any duty to require identification would be inapposite in this case.

                                          -4-
       The construction Werner urges us to accept would render two clauses in the
lease nugatory. Our adopting Werner's argument would violate the well-settled rule
of law that all parts of a contract should be given effect. See City of El Cajon v. El
Cajon Police Officers’ Ass’n, 49 Cal. App. 4th 64, 71 (1996) (noting court interpreting
contract should give effect to every provision and should avoid interpreting contract
so as to render any part surplusage). Were we to impose a duty on MNX to demand
identification before releasing any of Werner's property, we would emasculate the
lease's express provisions limiting MNX's liability for security. These provisions,
which state MNX will not be responsible for the release of Werner's property and limit
MNX's obligations for security to fencing and lighting, cannot be given effect under
Werner's reading of the lease. We cannot construe this lease in a manner that
contravenes its plain language and renders it internally inconsistent.

                                            III.

       The lease agreement unambiguously demonstrates that MNX assumed no duty
to supervise the release of Werner's property. Because MNX assumed no such duty,
Werner cannot state a claim for breach of contract in relation to the theft of its trailers.
The district court's granting of MNX's motion to dismiss is affirmed.

       A true copy.

              Attest:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                            -5-
