EDGEWELL PERSONAL CARE BRANDS, LLC v. ALBAAD MASSUOT YITZHAK, LTD., 15-1188-RGA. (2017)
Court: District Court, D. Delaware
Number: infdco20170123668
Visitors: 14
Filed: Jan. 20, 2017
Latest Update: Jan. 20, 2017
Summary: MEMORANDUM ORDER RICHARD G. ANDREWS , District Judge . "`There is no there there.'" (D.I. 68, p.5). This is Defendants' characterization of Plaintiff's Count III of the Second Amended Complaint. (D.I. 48). Defendants also use the more lawyerly characterization that the Count fails to state a claim upon which relief could be granted. Plaintiff, while not using the same words, characterizes Defendants' motion the same way — "a simple amendment to the [Second Amended Complaint] attaching [alre
Summary: MEMORANDUM ORDER RICHARD G. ANDREWS , District Judge . "`There is no there there.'" (D.I. 68, p.5). This is Defendants' characterization of Plaintiff's Count III of the Second Amended Complaint. (D.I. 48). Defendants also use the more lawyerly characterization that the Count fails to state a claim upon which relief could be granted. Plaintiff, while not using the same words, characterizes Defendants' motion the same way — "a simple amendment to the [Second Amended Complaint] attaching [alrea..
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MEMORANDUM ORDER
RICHARD G. ANDREWS, District Judge.
"`There is no there there.'" (D.I. 68, p.5). This is Defendants' characterization of Plaintiff's Count III of the Second Amended Complaint. (D.I. 48). Defendants also use the more lawyerly characterization that the Count fails to state a claim upon which relief could be granted. Plaintiff, while not using the same words, characterizes Defendants' motion the same way — "a simple amendment to the [Second Amended Complaint] attaching [already-produced] claim charts clearly would satisfy the pleading standard." (D.I. 62, pp. 10-11).
Defendants are right in their characterization of Count III, and Plaintiff is certainly right that it should be given the opportunity to amend its complaint, although I am not expressing any opinion how Plaintiff should do that. I decline to convert the Rule 12 motion into a Rule 56 motion.
Thus, Defendants' motion (D.I. 54) is GRANTED. Count III is DISMISSED without prejudice. Plaintiff is GIVEN ten days to file a complaint amended as to Count III.
IT IS SO ORDERED.
Source: Leagle
