Anderson et al v. King America Finishing, Inc. et al
Filing
28
ORDER AND OPINION denying 6 Plaintiffs' Motion to Remand to State Court; denying as moot 15 Defendants' Motion to Strike; and denying 20 Plaintiff's Motion to Amend. If plaintiffs wish, the Court will give them until April 22, 2013 to file an amended complaint that eliminates, as much as possible, any Twombly issues. Thereafter, defendants can file a renewed motion to dismiss based on the same grounds alleged before, if defendants conclude that such a motion is still nece ssary. If plaintiffs do not believe they can satisfy defendants objections by filing an amended complaint, they should so advise the Court, and the latter will allow defendants to refile their present motion to dismiss. Plaintiffs should advise the Court and defendants, by April 5, which course they choose to follow. Signed by Judge Julie E. Carnes on 3/25/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BEN H. ANDERSON, PARKER FREEMAN
and ADAM BATH, individually and
for all others similarly
situated,
Plaintiffs,
v.
CIVIL ACTION NO.
1:11-cv-2258-JEC
KING AMERICA FINISHING, INC.,
MICHAEL ALBERT BEASLEY and
BILLY T. PARISH,
Defendants.
ORDER & OPINION
This case is before the Court on plaintiffs’ Motion to Remand
[6], defendants’ Motion to Strike Affidavit of Jean Mangan, J.D. [15]
and plaintiffs’ Motion for Leave to Amend [20].
The Court has
reviewed the arguments of the parties and, for the reasons set out
below, concludes that plaintiffs’ Motion to Remand [6] should be
DENIED, defendants’ Motion to Strike [15] should be DENIED as moot,
and plaintiffs’ Motion for Leave to Amend [20] should be DENIED.
BACKGROUND
Plaintiffs allege that beginning on May 16, 2011, defendant King
America Finishing, Inc. (“KAF”) released a toxic chemical into the
Ogeechee River from its manufacturing plant in Dover, Georgia.
AO 72A
(Rev.8/82)
(Compl. [1] at ¶ 17.)
Dover is located in southeast Georgia in
Screven County. The Ogeechee runs from Dover through four additional
counties (Bulloch, Effingham, Bryan, and Chatham) and empties into
the Atlantic Ocean.
According to plaintiffs, the toxic chemical
release caused significant damage to surrounding land downstream from
the Dover plant, extending through these five counties.
18-22,
38-47.)
In
addition,
plaintiffs
claim
(Id. at ¶¶
that
certain
individuals who swam in the Ogeechee River suffered from physical
injuries due to the release.
(Id. at ¶¶ 24, 28-36.)
On June 7, 2011, plaintiffs filed a class action complaint in
Fulton County Superior Court.
(Id. at 1.)
In the complaint,
plaintiffs Anderson and Freeman claimed injury to their land.
at ¶¶ 18-22, 38-47.)
(Id.
They purported to represent a property damage
class defined to include “[a]ll possessors of property affected,
directly or indirectly, by [the May, 2011] release of chemicals into
the waters of the Ogeechee River.”
(Compl. [1] at ¶ 26.)
Plaintiff
Bath claimed that he swam in the Ogeechee River shortly following the
release, resulting in the burning of his lungs and subsequent
breathing difficulties.
(Id. at ¶¶ 24, 28-36.)
He purported to
represent a personal injury class defined to include “[a]ll persons
who have been exposed, directly or indirectly, with the waters of the
Ogeechee River that had been contaminated by the Release.”
¶ 26.)
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(Id. at
Defendants removed the case to federal court pursuant to the
Class Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332(d) and 1453.
(Notice of Removal [1].)
CAFA provides for the removal of any class
action in which there is:
(1) minimal diversity, (2) at least 100
putative class members and (3) $5 million in alleged damages.
U.S.C.
§§
1332(d)(2)
and
1453.
requirements are met in this case.
It
is
undisputed
that
28
these
(Notice of Removal [1] and Pls.’
Br. in Supp. of Mot. to Remand (“Pls.’ Br.”) [6].)
Plaintiffs
concede that all of the named plaintiffs are diverse from defendant
Billy Parish, that the putative class exceeds 100 members, and that
the claims exceed $5 million in damages.
(Notice of Removal [1] at
¶¶ 7-16 and Pls.’ Br. [6] at 6-8.)
Nevertheless, plaintiffs have filed a motion to remand the case
to state court.
(Pls.’ Mot. to Remand [6].)
In support of their
motion, plaintiffs cite the “local controversy” exception to CAFA
jurisdiction, which provides for the remand of a class action that
“uniquely affects a particular locality to the exclusion of all
others.”
Evans v. Walter Indus., Inc., 449 F.3d 1159, 1164 (11th
Cir. 2006).
In addition to the motion to remand, the parties have
filed related motions to (1) strike an affidavit submitted in support
of remand and (2) amend the complaint to expressly allege a “local
3
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controversy.”1
(Defs.’ Mot. to Strike [15] and Pls.’ Mot. to Amend
All of these motions are now before the Court.2
[20].)
DISCUSSION
I.
PLAINTIFFS’ MOTION TO REMAND [6]
A.
Legal Standard
As noted, plaintiffs do not dispute that defendants have met all
of the conditions for removal under CAFA.
(Pls.’ Br. [6] at 3-4.)
The relief that plaintiffs seek in their motion is remand to state
court
pursuant
jurisdiction.
to
the
“local
(Id. at 3-6.)
controversy”
a
party
seeks
to
to
CAFA
Under CAFA, plaintiffs bear the burden
of proving that the exception applies.
(“when
exception
avail
itself
Evans, 449 F.3d at 1164
of
an
express
statutory
exception to federal jurisdiction granted under CAFA . . . we hold
that the party seeking remand bears the burden of proof with regard
to that exception”).
A “local controversy” is defined by CAFA as a class action in
which: (1) greater than two-thirds of the class members are citizens
1
Defendants have also moved to dismiss plaintiffs’ complaint
as to the two individual defendants. (Defs.’ Mot. to Dismiss [5].)
However, that motion has been stayed pending a decision on the motion
to remand. (Consent Order [9].)
2
This case was originally assigned to the Honorable Clarence
Cooper, before whom the present motions were filed. Judge Cooper
recused on April 2, 2012, after which the case was reassigned to the
undersigned.
4
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of the state in which the action was originally filed, (2) at least
one “significant” defendant is a citizen of the state in which the
action was filed and (3) the principal injuries alleged in the action
were incurred in the state in which the action was filed.
§ 1332(d)(4)(A).3
28 U.S.C.
Defendants concede, for purposes of this motion,
that Michael Beasley is a significant defendant who is a citizen of
Georgia, and that the alleged principal injuries also occurred in
Georgia.
(Defs.’ Resp. Br. [10].)
The dispute between the parties
centers around the two-thirds requirement.
(Id. at 5-12.)
In order to meet their burden on the two-thirds requirement,
plaintiffs must present evidence from which the Court can credibly
adduce that more than two-thirds of the purported class members are
Georgia citizens.
Evans, 449 F.3d at 1166.
See also Scott v. ING
Clarion Partners, LLC, No. CIVA 1:06CV1843 RLV, 2006 WL 3191184, at
*5 (N.D. Ga. Oct. 31, 2006)(Vining, J.)(finding that plaintiffs had
produced insufficient evidence to satisfy their burden on the twothirds requirement).
Although it need not be conclusive, the
evidence presented cannot require a significant amount of “guesswork”
as to the actual citizenship of class members.
3
See In re Sprint
A “local controversy” also exists where “two-thirds or more”
of the class members and the “primary defendants” are citizens of the
state in which the action was filed.
28 U.S.C. § 1332(d)(4)(B).
However, plaintiffs do not rely on this alternative definition.
(Pls.’ Br. [6] at 7-9.)
5
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Nextel Corp., 593 F.3d 669, 674 (7th Cir. 2010)(a billing address or
phone number within a state is not sufficiently coterminous with
state citizenship to meet plaintiff’s burden) and Heretick v. Publix
Super
Markets,
Inc.,
841
F.
Supp.
2d
1247,
1250
(M.D.
Fla.
2012)(plaintiff could not meet its burden of showing that two-thirds
of Publix ATM users were citizens of Florida with evidence that 71%
of all Publix stores were in Florida).
For purposes of federal
jurisdiction, a natural person is a citizen of the state in which he
is domiciled.
Cir. 2002).
McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th
A corporation is a citizen of any state in which it is
incorporated and the state in which it has its principal place of
business.
B.
28 U.S.C. § 1332(c).
Plaintiffs’ Evidence
Plaintiffs assert in their motion that 654 out of 932 class
members (70.2%) are Georgia citizens.
(Pls.’ Reply [13] at 7-8.)
Plaintiffs reached the 932 number by adding 20 individuals who claim
to have suffered personal injury as a result of the release to 912
owners of allegedly affected land.
(Id. at 7.)
Plaintiffs attained
the names of the 912 landowners from tax assessment records and
cross-referenced those names with Georgia’s Voter Registry Database
and the Georgia Secretary of State’s Corporation website. (Id. at 57.)
According to plaintiffs, the comparison identified 578 property
owners who were registered to vote in Georgia and 57 legal entities
6
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whose principal place of business is Georgia. (Id.) Plaintiffs then
determined, through interviews, that 19 out of the 20 prospective
personal injury plaintiffs are Georgia citizens.
(Id. at 7.)
Defendants argue that tax records and voter registration records
are insufficient to establish the actual owners of the affected
properties and their citizenship status. (Defs.’ Surreply [24] at 25.)
For example, tax records may not have recorded recent property
sales and voter registration records may not reflect an individual’s
current citizenship.
(Id.)
Thus, defendants contend that these are
not adequate tools to determine whether the affected individuals were
Georgia citizens at the time that the complaint was filed.
(Id.)
As
to the corporate class members, defendants point out that the
“principal mailing address” available on the Secretary of State’s
website is not equivalent to a principal place of business.
(Id. at
5-6.)
Defendants also challenge the total number of class members upon
which plaintiffs derive their 70.2% calculation.
(Id. at 7.)
As
noted, plaintiffs define the property class to include all possessors
of land affected directly or indirectly by the May, 2011 release.
(Compl. [1] at ¶ 26.) The personal injury class is similarly defined
to include all persons who were directly or indirectly exposed to the
contaminated waters of the Ogeechee River.
(Id.)
Given the broad
class definitions, defendants contend that it is likely that the
7
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(Rev.8/82)
purported class includes more than 932 members, and that the 70.2%
figure is therefore inaccurate.
C.
(Defs.’ Surreply [24] at 7.)
Analysis
The Court recognizes the potential shortcomings of using tax and
voter registration records to establish the citizenship of the
property class members.
See Sunseri v. Macro Cellular Partners, 412
F.3d 1247, 1249 (11th Cir. 2005)(voter registration in a particular
state is not equivalent to citizenship of that state).
The tax
records may be out of date and an individual registered to vote in
Georgia may have long since left the state.
However, the Court is
unwilling to say categorically that these methods of proof are
inadequate to meet the class member citizenship requirement of the
local controversy exception under CAFA.
Given a reasonable class
definition and thorough research and documentation by plaintiffs,
cross-referencing tax and voter registration records might provide
sufficient information to credibly adduce that two-thirds of the
landowner class members are Georgia citizens.
Evans, 449 F.3d at
1166.
Likewise,
the
Court
is
unwilling
to
require
individual
interviews with every single personal injury class member in order to
verify Georgia citizenship, as defendants seem to contemplate.
See
Gavron v. Weather Shield Mfg., Inc., No. 10-22088-CIV, 2010 WL
3835115, at *3 (S.D. Fla. Sept. 29, 2010)(“[plaintiff] is not
8
AO 72A
(Rev.8/82)
expected to account for all class members”)(Huck, J.).
nor Evans nor common sense requires this much.
Neither CAFA
As indicated above,
many of the cases in which district courts have rejected plaintiffs’
efforts to establish class member citizenship have been instances
where the proffered evidence is mere conjecture and devoid of any
empirical analysis.
Id.
See also Scott, 2006 WL 3191184, at *5
(“plaintiffs have come forward with no evidence whatsoever to support
such a claim”)(emphasis added).
That being said, the tax and voter registration records only
show that 578 out of the 912 purported property class members (62%)
are Georgia citizens.
Plaintiffs reached their 70.2% figure by
adding to their calculations 57 additional property class members,
comprised of a group of legal entities that were determined to be
Georgia citizens by reference to the Secretary of State’s Corporation
website, as well as 19 out of 20 personal injury class members who
were determined by interview to be Georgia citizens.
(Pls.’ Reply
[13] at 7.) There is no sound evidentiary basis for including either
of these groups in the calculation.
With regard to the 57 legal entities, the Secretary of State’s
website merely lists a Georgia office address for each entity.
(Defs.’ Surreply [24] at Ex. A.)
The website does not indicate that
any of these entities have their “principal place of business” in
Georgia.
See Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192 (2010)(a
9
AO 72A
(Rev.8/82)
corporation is deemed to be a citizen of the state where its “nerve
center” is located, which may or may not be the same as the
corporation’s office address).
entities
are
not
In addition, at least some of the 57
corporations,
but
LLCs
or
other
forms
of
partnerships. (See Property Owners List Verified by Comparison to GA
Voter
Registry
[13]
at
1.)
The
citizenship
of
an
LLC
or
a
partnership is determined by the citizenship of the entity’s members.
Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079,
1086-88 (11th Cir. 2010).
The Secretary of State’s website does not
shed any light on that issue.
As to the 19 personal injury class members, plaintiffs do not
describe
how
interviews.
these
individuals
were
contacted
or
selected
for
See Evans, 449 F.3d at 1166 (“we know nothing about the
percentage of the total class represented by the . . . people on
which plaintiffs’ evidence depends”).
The affidavits describing the
interviews reference some of the plaintiffs’ family members as
potential victims.
(See Azar Aff. [6] at ¶ 4.)
However, the
affidavits do not indicate whether these family members are Georgia
citizens, or how many of these family members there might be.
Moreover, while plaintiffs have provided Georgia addresses for the 19
prospective
plaintiffs,
having
a
residence
in
Georgia
is
not
determinative of state citizenship. See McCormick, 293 F.3d at 125758.
10
AO 72A
(Rev.8/82)
In addition to the evidentiary issues with the numerator in
plaintiffs’
equation,
denominator as well.
there
are
serious
questions
about
the
Plaintiffs’ 70.2% figure is based on a total
aggregate class of 932 plaintiffs.
(Pls.’ Reply [13] at 7.)
But as
mentioned, both the property and the personal injury classes are
defined broadly in the complaint to include all land and persons
directly or indirectly impacted by the May, 2011 release.
(Compl.
[1] at ¶ 26.) Given that broad definition, the property class likely
includes many more members than the 912 landowners in the particular
geographical area chosen by plaintiffs’ attorneys.
Likewise, there
may be many more individuals who were “indirectly” injured by the
release
than
plaintiffs.
the
20
potential
class
members
interviewed
by
The Court cannot speculate about the citizenship of
these unaccounted for class members.
For all of these reasons,
plaintiffs’ motion to remand [6] is DENIED.4
II.
PLAINTIFFS’ MOTION TO AMEND [20]
Presumably concerned that their motion to remand would not be
granted, approximately three months after the briefing on the remand
motion had concluded, the plaintiffs filed a motion to amend their
complaint.
(Pls.’ Mot. for Leave to Amend [20].)
4
Through this
In reaching its conclusion, the Court considered the Affidavit
of Jean Mangan and found the evidence therein insufficient to support
remand. Accordingly, defendants’ motion to strike the affidavit [15]
is DENIED as moot.
11
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attempted amendment, plaintiffs seek to limit their class to only
Georgia citizens.
(Id.)
According to plaintiffs, this proposed
amendment will moot the controversy between the parties regarding the
citizenship of the plaintiff class members and the applicability of
the local controversy exception. (Id. at 2.) Assuming the motion to
amend is granted, the Court assumes that plaintiffs will file a
second motion to remand on “local controversy” grounds.
Plaintiffs’
motion
to
amend
is
governed
by
Federal
Rule
15(a)(1), which permits a party to amend its pleading once, as a
matter of course within:
(A)
21 days after serving it, or
(B)
...21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (3), or
(f), whichever is earlier.
FED. R. CIV. P. 15(a)(1)(A)-(B).
Here, the defendants had filed both a responsive pleading (an
answer) and a motion to dismiss under Rule 12(b). Plaintiffs’ motion
to amend was filed almost five months after the above submissions by
defendants.
Accordingly, plaintiff must obtain the approval of the
Court in order to amend the complaint. “[L]eave [to amend]” shall be
“freely give[n] when justice so requires.”
Rule 15(a)(2).
Courts
generally grant leave to amend unless there is a substantial reason
for denial, such as “undue delay, undue prejudice to the defendants,
[or] futility of the amendment.” Carruthers v. BSA Adver., Inc., 357
12
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F.3d 1213, 1218 (11th Cir. 2004).
Defendants have filed a response in which they argue that the
amendment should be denied based on the grounds of “bad faith, undue
prejudice, and futility....”
in
particular,
plaintiffs’
(Defs.’ Resp. [21] at 2.)
failure
to
“clearly,
consistently redefine the proposed sub-classes.”
defendants
argue
“impermissible
that
attempt
plaintiffs’
to
proposed
improperly
They note,
concisely,
(Id.)
Finally,
amendment
influence
the
and
is
an
Court’s
determination of jurisdiction” and violates the principle established
by the Eleventh Circuit that a court must review the propriety of
removal on the basis of the documents submitted at the time of
removal, not on an amended pleading.
Plaintiffs
have
filed
no
(Id. at 9.)
reply
to
defendants’
response.
Analyzing defendants’ contentions without the benefit of any argument
to the contrary by plaintiff, the Court concludes that defendants’
points seem meritorious.
As defendants correctly note, plaintiffs
have not been sufficiently clear about their proposed amendments to
enable the Court to grant a motion to amend.
In the motion itself,
plaintiff proposes changing the property class definition to “All
Georgia citizens” affected by the May, 2011 release.
Amend [20] at 1-2.)
(Pls.’ Mot. to
However, in the brief submitted in support of
the motion, plaintiffs propose changing the property class definition
to “All citizens of Georgia that possess property affected” by the
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release.
(Pls.’ Br. in Supp. of Mot. to Amend [20] at 3.)
attached
draft
amendment,
plaintiffs
propose
yet
In the
another,
much
broader definition of the property class. (Pls.’ Proposed Am. Compl.
[20] at ¶ 26.)
As for the personal injury class, plaintiffs repeatedly assert
in their brief that they are proposing a change to the original
definition.
(Pls.’ Br. in Supp. of Mot. to Amend [20] at 3.)
Yet,
several times in the brief plaintiffs use exactly the same definition
that they used in the original complaint.
(Id.)
In the proposed
amended complaint, plaintiffs do offer a different definition for the
personal injury class.
(Pls.’ Proposed Am. Compl. [20] at ¶ 26.)
However, the contradiction between the definition used in the brief
and the definition proffered in the proposed amendment creates
confusion.
Further,
and
despite
their
assurances
to
the
contrary,
plaintiffs have changed many of their initial allegations in ways
that have nothing to do with the definition of the class.
Proposed Am. Compl. [20].)
(Pls.
For example, plaintiffs have altered
their calculations of the amount of land
owned by one of the lead
plaintiffs and the length of the river that was affected by the May,
2011 release.
(Id. at ¶¶ 3, 18.)
for inverse condemnation.
Plaintiffs have also added a claim
(Id. at ¶¶ 65-71.)
Given the above inconsistencies, it is not at all clear what
14
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amendments plaintiffs seek to make to their complaint.
their motion to amend cannot be granted, as drafted.
As a result,
Typically, the
Court would consider giving the plaintiffs another opportunity to
amend, if the plaintiffs had so expressed that wish.
Here, though,
plaintiffs have made no request that they be allowed to file a second
amendment in the event that the Court agrees with defendants as to
the deficiencies in their pending proposed amended complaint.
As
noted, plaintiffs filed no reply to defendants’ response.
Even had plaintiffs asked for another chance to amend their
complaint
in
order
to
satisfy
the
requirement
for
a
“local
controversy” under CAFA, they would still have to explain to the
Court how a complaint, amended for the sole purpose of destroying
diversity jurisdiction under CAFA, could be considered by the Court,
given the legal authority to the contrary cited by the defendants.
Specifically, defendants cite Eleventh Circuit case authority in
support of the principle that a court cannot consider a post-removal
amendment to determine whether there is jurisdiction under CAFA.
See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 773
(11th Cir. 2010)(“under any manner of proof, the jurisdictional facts
that support removal must be judged at the time of the removal”) and
Miedema v. Maytag Corp., 450 F.3d 1322, 1331 (11th Cir. 2006)
(“‘Jurisdictional facts are assessed on the basis of plaintiff’s
complaint as of the time of removal.’”)(quoting Burns v. Windsor Ins.
15
AO 72A
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Co., 31 F.3d 1092, 1097 (11th Cir. 1994)).
While those cases are distinguishable as to the facts at issue-albeit it is not clear that these different facts undermine the above
principle--defendants have also cited a Seventh Circuit case that is
closer to the facts here:
In Re Burlington N. Santa Fe Ry. Co., 606
F.3d 379 (7th Cir. 2010).
In that case, after the district court had
denied the plaintiffs’ motion to remand, the plaintiffs asked for
leave to amend their complaint to remove all their class allegations.
The district court permitted them to amend for that purpose, and then
remanded the case.
The Seventh Circuit reversed, endorsing the
“well-established general rule...that jurisdiction is determined at
the
time
of
jurisdiction.”
removal,
and
Id. at 380.
nothing
filed
after
removal
affects
Noting the possibility that a plaintiff
who sues in federal court can sometimes amend away jurisdiction, the
court advised that “removal cases present concerns about forum
manipulation that counsel against allowing a plaintiff’s post-removal
amendments to affect jurisdiction.”
Id. at 381.
Perhaps plaintiffs could have mounted an argument to dispute the
reasoning articulated by the Seventh Circuit in Burlington, or
distinguish its application to this case. They did not attempt to do
so, however, and it is not up to the Court to attempt to make those
arguments for them.
Given the absence of any disagreement by
plaintiffs as to defendants’ argument that plaintiffs should not be
16
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allowed to destroy jurisdiction by a post-removal amendment of their
complaint and given the above-cited Eleventh Circuit case authority
that while, not on point with these precise facts, does seem to
disfavor them, the Court accepts defendants’ argument on this issue
as being unopposed.
For all the above reasons, the Court DENIES plaintiffs’ motion
to amend [20].
CONCLUSION
For the foregoing reasons, the Court DENIES plaintiffs’ Motion
to Remand [6]; DENIES as moot defendants’ Motion to Strike [15]; and
DENIES plaintiffs’ Motion to Amend [20].
As to the defendants’ prior motion to dismiss, the Court earlier
issued an Order denying without prejudice that motion, with leave for
the defendants to refile within 14 days of a ruling on the motion to
remand.
(See Minute Order, May 29, 2012.)
Thus, as the Court is now
denying plaintiffs’ motion to remand, we can expect defendants to
soon refile that motion.
The Court is not sure, though, that this
would be the most efficient way to proceed.
That is, plaintiffs do
seem vulnerable to some of defendants’ Twombly arguments. Certainly,
if plaintiffs want to so proceed, we can now embark on litigation of
this soon-to-be refiled motion to dismiss.
Yet, that litigation will further delay this case and probably
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will eventually result in an Order requiring more specification by
the plaintiffs.
That being so, the plaintiffs might prefer to go
ahead and attempt to amend their complaint now, as best they are able
to do so, to address some or all of the alleged deficiencies
identified by defendants.
Accordingly, if plaintiffs wish, the Court will give them until
April 22, 2013 to file an amended complaint that eliminates, as much
as possible, any Twombly issues.
Thereafter, defendants can file a
renewed motion to dismiss based on the same grounds alleged before,
if defendants conclude that such a motion is still necessary.
If, on the other hand, plaintiffs do not believe they can
satisfy defendants’ objections by filing an amended complaint, they
should so advise the Court, and the latter will allow defendants to
refile their present motion to dismiss. Plaintiffs should advise the
Court and defendants, by April 5, which course they choose to follow.
If plaintiffs indicate on that date that they do not wish to go ahead
and
file
an
amended
complaint
now
that
addresses
the
Twombly
challenges, the defendants may refile a motion to dismiss within 14
days thereafter.
SO ORDERED, this 25th day of MARCH, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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