Koller v. Med Foods, Inc. et al

Filing 30

ORDER DIRECTING THE PARTIES TO MEET AND CONFER. Signed by Judge Richard Seeborg on 9/3/14. (cl, COURT STAFF) (Filed on 9/3/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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No. C 14-02400 RS

SCOTT KOLLER,

ORDER DIRECTING THE PARTIES
TO MEET AND CONFER

Plaintiff,
v.

DEOLEO USA, INC. and MED FOODS,
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Defendants.
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This is a case concerning the labeling and contents of products sold by defendants Deoleo
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USA, Inc. and Med Foods, Inc. under various brand names and labels as “extract virgin olive
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oil.” On July 17, 2014, defendants moved to dismiss the complaint in its entirety pursuant to
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Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which
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relief can be granted. Among other grounds for dismissal, defendants argue the complaint is
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implausible because plaintiff claims certain of the challenged products are bottled in clear glass
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that allows the oil to degrade when, in fact, those products are bottled in green glass, which
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plaintiff himself avers protects against such degradation. Along with his response to the motion,
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plaintiff filed an “errata” to the complaint, adding an additional challenged product to the
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complaint and changing the definition of “Mock EVOO Products” as defined in the complaint.
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NO. 14-CV-02400 RS
ORDER

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According to defendants, these changes were an attempt by plaintiff to overcome defendants’

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argument concerning packaging. Defendants now move to strike the errata in its entirety as an

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impermissible attempt to amend the complaint without consent or leave to amend.

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Without deciding the motion to strike, it does not serve the aim of judicial efficiency to

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address the motion to dismiss while there are disputed amendments pending to the complaint that

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may negate some of defendants’ asserted grounds for dismissal. The parties are therefore

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directed to meet and confer regarding either (1) consent to amend the complaint and withdraw

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the pending motions without prejudice to defendants refiling a motion to dismiss the amended

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complaint; or (2) a briefing schedule on a motion for leave to amend. On or before September
17, 2014, plaintiff shall file either an amended complaint (with defendants’ consent) or a motion

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For the Northern District of California

United States District Court

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for leave to amend. The hearings set for September 11, 2014 on the motion to dismiss (ECF No.

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14) and October 9, 2014 on the motion to strike (ECF No. 29) are hereby vacated. In the event

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plaintiff files a motion for leave to amend, the pending motions shall be held in abeyance until a

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decision is issued thereon.

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IT IS SO ORDERED.

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DATED: September 3, 2014

_______________________________
RICHARD SEEBORG
United States District Judge

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NO. 14-CV-02400 RS
ORDER

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