Sunteck Transport Co., Inc. v. Nolan Transportation Group, Inc. et al

Filing 15

OPINION AND ORDER denying as moot 4 Motion to Dismiss for Failure to State a Claim; granting 9 Motion to Amend/Correct. Clerks Notice: Filer must separately re-file the amended pleading pursuant to Local Rule 15.1, unless otherwise ordered by the Judge. Signed by Judge Kenneth A. Marra on 8/15/2011. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-80752-Civ-MARRA/JOHNSON
SUNTECK TRANSPORT CO.,
INC., a Florida corporation,
Plaintiff,
vs.
NOLAN TRANSPORTATION GROUP,
INC., a Georgia corporation, and
KEVIN NOLAN, an individual, and
JON GLASS, an individual,
Defendants.
____________________________/
ORDER AND OPINION
THIS CAUSE is before the Court upon Defendant Nolan Transportation Group, Inc.
and Defendant Kevin Nolan’s Motion to Dismiss [DE 4] and Plaintiff’s Motion for Leave to
Amend [DE 9]. The Court has carefully considered the motions and is otherwise fully
advised in the premises.
Plaintiff filed its Verified Complaint against Defendants Nolan Transportation
Group, Inc. (“Nolan Transportation”) and Kevin Nolan (“Mr. Nolan”) in Florida state
circuit court, Palm Beach County, on or about May 19, 2011. Plaintiff then filed its
Amended Verified Complaint on June 14, 2011 as of right pursuant to Fla. R. Civ. P.
1.190(a), for the purpose of adding Defendant Jon Gloss (“Mr. Gloss”) to the action.
Service on Mr. Gloss was effected on June 24, 2011. Defendants Nolan Transportation
and Mr. Nolan removed this matter on June 29, 2011. Defendants Nolan Transportation
and Mr. Nolan then filed their Motion to Dismiss on July 6, 2011.

Plaintiff states that “[r]ather than filing a legal memorandum in opposition to the
motion to dismiss, Plaintiff believes it can more efficiently address the alleged pleading
defects by filing an amended complaint.” DE 9 at ¶ 6. In its Rule 7.1(a)(3) Certification,
Plaintiff states that counsel for the Moving Defendants “has indicated that he is unable
to obtain his clients’ approval or is unwilling to consent on their behalf.” DE 9 at 4.
Moving Defendants have not responded to the Motion for Leave to Amend and the time
period for doing so has past. Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion for Leave to Amend [DE 9] is
GRANTED. Foman v. Davis, 371 U.S. 178, 182 (1962); Federal Rule of Civil Procedure
15(a). Pursuant to the Administrative Procedures, Southern District of Florida, Plaintiff
shall separately electronically file its Second Amended Verified Complaint, which is
deemed filed as of the date of this Order. As Plaintiff's Amended Verified Complaint will
be replaced by a Second Amended Verified Complaint, it is further
ORDERED AND ADJUDGED that Defendant Nolan Transportation Group, Inc. and
Defendant Kevin Nolan’s Motion to Dismiss [DE 4] is DENIED AS MOOT. This denial is
without prejudice to movants reasserting the grounds raised in the motion if they deem
it appropriate as to the Second Amended Verified Complaint.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 15th day of August, 2011.

_________________________
KENNETH A. MARRA
United States District Judge
copies to:
All counsel of record