Edgewell Personal Care Brands, LLC v. Albaad Massuot Yitzhak, Ltd. et al

Filing 75

MEMORANDUM ORDER Denying 54 MOTION to Dismiss to Dismiss Count III of the Second Amended Complaint. Plaintiff is GIVEN ten days to file a complaint amended as to Count III. Signed by Judge Richard G. Andrews on 1/20/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EDGEWELLPERSONALCARE
BRANDS, LLC,
Plaintiff,
Civil Action No. 15-1188-RGA

V.

ALBAAD MASSUOT YITZHAK, LTD,
and ALBAAD USA, INC.
Defendants.

MEMORANDUM ORDER

'"There is no there there."' (D.I. 68, p.5). This is Defendants' characterization of
Plaintiffs 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 this

1,q

day of January 20017.

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