PERFECT FLOWERS, INC. v. TELEFLORA LLC

Filing 52

ORDER granting in part and denying in part Plaintiff's 47 Motion for Leave to File Amended Complaint. Plaintiff's motion to amend [Docket No. 47] is granted to the extent it seeks to cure deficiencies in Plaintiff's damages allegati ons under a breach of contract theory, consistent with this Court's prior order. [Docket No. 44.] However, Plaintiff's motion is denied to the extent Plaintiff attempts to add a fraud claim. Plaintiff shall file an amended complaint, consistent with this order, within the next 14 days (see Order for additional information). Signed by Magistrate Judge Tim A. Baker on 8/29/2011. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

PERFECT FLOWERS, INC.,
Plaintiff,
v.
TELEFLORA LLC,
Defendant.

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) CASE NO. 1:10-cv-01031-SEB-TAB
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ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO AMEND
On June 16, 2011, this Court granted Defendant’s motion to dismiss, but gave Plaintiff 30
days to file an amended complaint “that addresses the pleading deficiencies described herein, if
he chooses to proceed further with this litigation.” [Docket No. 44 at 14–15.] Plaintiff
responded with a motion for leave to file an amended complaint [Docket No. 47], which reflects
Plaintiff’s desire to proceed further with this litigation but apparently in a manner quite different
than the Court anticipated in noting that Plaintiff could file an amended complaint.
Specifically, Plaintiff’s proposed amended complaint does not simply address the
deficiencies that prompted the Court to grant Defendant’s motion to dismiss. Instead, the
Plaintiff’s proposed amended complaint seeks to add an entirely new theory to this case: fraud.
Nothing in this Court’s order granting Defendant’s motion to dismiss invites Plaintiff to add new
legal theories to this case. Doing so is quite different than merely addressing the “pleading
deficiencies” the Court noted. [Docket No. 44 at 14–15.] The time to amend set forth in the
Case Management Plan was June 29, 2011, so Plaintiff’s attempt to amend in a manner that goes
beyond the scope of this Court’s CMP deadlines and motion to dismiss order is improper.

Moreover, contrary to Fed. R. Civ. P. 9(b), Plaintiff’s fraud claim is not pleaded with the
requisite particularity. As a result, Defendant has objected, and rightly so. [Docket No. 50.]
This is not to say that the Plaintiff’s attempted amendment fails in all respects. The
proposed amended complaint addressed some of the shortcomings noted by the Court by alleging
damages caused by Defendant’s alleged conduct. [Docket No. 47-1 at 4.] Specifically, Plaintiff
now alleges that “[s]ome of these customers, on information and belief, would have ordered from
the actual Flowers By Valerie website had they not had this unauthorized hypertext link to the
unauthorized website.” Although Plaintiff’s amendment simply rewords some of the text from
the Court’s order to dismiss [Docket No. 44 at 14], this tactic is sufficient, if marginally so. The
amended complaint will therefore be permitted to the extent Plaintiff is bolstering its breach of
contract claim consistent with this Court’s prior motion to dismiss ruling.
Accordingly, Plaintiff’s motion to amend [Docket No. 47] is granted to the extent it seeks
to cure deficiencies in Plaintiff’s damages allegations under a breach of contract theory,
consistent with this Court’s prior order. [Docket No. 44.] However, Plaintiff’s motion is denied
to the extent Plaintiff attempts to add a fraud claim. Plaintiff shall file an amended complaint,
consistent with this order, within the next 14 days.1
Dated: 08/29/2011
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
1

This means that the Plaintiff need not file another motion to amend. Leave already has
been granted. Despite a similar directive in the Court’s prior order on Defendant’s motion to
dismiss, Plaintiff responded by filing a motion rather than merely amending the complaint. This
also means, however, that the amended complaint should not make another attempt to add a
fraud claim.

Copies to:
Kristina M Diaz
ROLL LAW GROUP PC.
[e-mail]
Michael D. Moon Jr.
BARNES & THORNBURG LLP
[e-mail]
J. P. Pecht
ROLL LAW GROUP P.C.
[e-mail]
Steven G. Poore
ATTORNEY AT LAW
[e-mail]
Michael Rosiello
BARNES & THORNBURG LLP
[e-mail]
Christopher Kenneth Starkey
[e-mail]