Nolley v. Muscletech Research and Development, Inc. et al

Filing 23

ORDER Granting Plaintiff's 18 Motion for Leave to Amend Complaint and Denying As Moot Defendants' 10 and 11 Motion to Dismiss. Signed by Judge Barry Ted Moskowitz on 6/18/10. (vet)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

IN RE HYDROXYCUT MARKETING AND SALES PRACTICES LITIGATION ________________________________ ANDREW NOLLEY, Plaintiff, vs. MUSCLETECH RESEARCH AND DEVELOPMENT, INC., IOVATE HEALTH SCIENCES USA, INC., and GNC CORPORATION, Defendants.

CASE NO. 09MD2087-BTM (AJB) NO. 10 CV671-BTM ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT AND DENYING AS MOOT DEFENDANTS' MOTIONS TO DISMISS

On April 2, 2010, defendants Iovate Health Sciences U.S.A., Inc. and Muscletech Research and Development, Inc. filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 9(b), 12(b)(1), and 12(b)(6).1 On that same date, defendant GNC Corporation filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).2 The hearing on both motions was set for June

[09md2087 - Docket Entry 147] [09md2087 - Docket Entry 146]
09MD2087

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25, 2010. On June 4, 2010, attorneys for plaintiff Andrew Nolley filed a Motion for Leave to Amend Complaint.3 On June 7, 2010, the Court ordered Defendants to file a response, if any, to Plaintiff's Motion for Leave to Amend.4 Pursuant to that order, Defendants filed a Response stating, "Defendants do not have any objection to Plaintiff filing an amended complaint as a general matter," but that Plaintiff's proposed amendments only cured some and not all of the pleading defects.5 Upon review of the papers submitted by the parties, the Court hereby orders as follows: 1. 2. Plaintiff's Motion for Leave to Amend is GRANTED. The scope of the leave granted is not limited to the amendments proposed by

Plaintiff, but shall be broad enough to permit Plaintiff to make any and all amendments he deems appropriate or necessary to cure any defects alleged by Defendants. 3. The two pending Motions to Dismiss [09md2087 - Docket Entries 146 and 147]

are DENIED as moot since the original complaint will no longer be the operative complaint once Plaintiff files his First Amended Complaint in this case.

IT IS SO ORDERED. DATED: June 18, 2010

Honorable Barry Ted Moskowitz United States District Judge

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[09md2087 - Docket Entry 236] [09md2087 - Docket Entry 238] [09md2087 - Docket Entry 244]
09MD2087