K&F Restaurant Holdings, Ltd. et al v. Rouse et al

Filing 51

NOTICE AND ORDER: Plaintiff's 46 First Amended Complaint shall be STRICKEN from the record. Plaintiffs shall have seven (7) days from the date of this Notice and Order to file a comprehensive amended complaint without further leave of court. D efendants shall have twenty-one (21) days from the filing of the comprehensive amended complaint to file responsive pleadings. The 49 MOTION for Extension of Time to File Answer to 46 Amended Complaint, and 50 MOTION for Expedited Hearing are TERMINATED AS MOOT. Signed by Magistrate Judge Erin Wilder-Doomes on 3/23/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
K&F RESTAURANT
HOLDINGS, LTD., ET AL.
CIVIL ACTION
VERSUS
NO. 16-293-SDD-EWD
DONALD J. ROUSE, JR., ET AL.
NOTICE AND ORDER
Before the court is a Motion for Extension of Time in Which to File Responsive Pleading
to Amended Complaint (the “Motion for Extension”)1 and a Motion to Expedite Consideration of
Motion for Extension of Time in Which to File Responsive Pleading to Amended Complaint (the
“Motion to Expedite”)2 filed by defendants, Donald J. Rouse, Jr.; Donald J. Rouse, Sr.; Thomas
B. Rouse; Allison Rouse Royster; and Rouse’s Enterprises, LLC (“Rouse’s”) (collectively,
“Defendants”).
On or about April 13, 2016, plaintiffs, K&F Restaurant Holdings, Ltd. d/b/a Izzo’s Illegal
Burrito (“Izzo’s”); K&F Restaurant Operations, LLC; G&O Pizza Holdings, Ltd. d/b/a LIT Pizza;
G&O Restaurant Operations, LLC; Osvaldo Fernandez; and A. Gary Kovacs (“Plaintiffs”) filed a
Verified Petition for Damages (the “Original Petition”) against Defendants in state court.3
Defendants subsequently removed this matter to federal district court on the basis of federal
question subject matter jurisdiction pursuant to 28 U.S.C. § 1331.4 Thereafter, Defendants filed a
Partial Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion to
Dismiss”)5 seeking dismissal of Plaintiffs’ claims for violation of the Louisiana Unfair Trade
Practices Act and Consumer Protection Law (“LUTPA”) (Count I), violation of Louisiana Civil

1

R. Doc. 49.
R. Doc. 50.
3
R. Doc. 1-1.
4
R. Doc. 1.
5
R. Doc. 5.
2

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Code Article 2315 (Count II), tortious interference with a contract (Count II A), product
defamation (Count II B), civil conversion (Count II C), trademark infringement under Louisiana
law (Count III), and conspiracy (Count IV). On February 2, 2017, the court granted in part and
denied in part Defendants’ Motion to Dismiss.6

Accordingly, pursuant to Fed. R. Civ. P.

12(a)(4)(A), Defendants’ responsive pleading to the Original Petition were due on February 16,
2017. (“Unless the court sets a different time, serving a motion under this rule alters these periods
as follows: (A) if the court denies the motion…the responsive pleading must be served within 14
days after notice of the court’s action.”). However, per Defendants’ Motion for Extension,
“because Plaintiffs’ counsel indicated to Defendants’ counsel that Plaintiffs would be filing an
amended complaint, the parties agreed that Defendants would not file an answer until Plaintiffs
filed the amended complaint.”7
On March 16, 2017, Plaintiffs’ filed a First Amended Complaint (the “Amended
Complaint”).8

However, the Amended Complaint is not comprehensive.

Rather than

incorporating all live allegations set forth in one comprehensive pleading, the Amended Complaint
adopts by reference and renews “all statements, causes of action, claims, and allegations set forth
in the original Verified Petition for Damages as if copied herein in extenso.”9 Such incorporation
by reference is inconsistent with the court’s February 2, 2017 ruling on the Motion to Dismiss and
introduces an element of uncertainty regarding the Plaintiffs’ live allegations.
Per Defendants’ Motion for Extension, Plaintiffs’ counsel opposes an (additional)
extension of time within which to respond to the Original Petition, but does not oppose an

R. Doc. 31. Specifically, the court dismissed Plaintiffs’ LUTPA claim with prejudice as prescribed. The court
dismissed Plaintiffs’ claims of tortious interference with a business relationship, product defamation and/or
disparagement, civil conversion, and conspiracy without prejudice. The court denied Defendants’ Motion to Dismiss
Plaintiffs’ Louisiana trademark claim. R. Doc. 31, p. 14.
7
R. Doc. 49, ¶ 2. The court understands this to imply Defendants’ consent to Plaintiffs filing an amended complaint.
8
R. Doc. 46.
9
R. Doc. 46.
6

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extension of time within which to respond to the Amended Complaint.10 Defendants explain that
they “are unaccustomed to responding to an original complaint and amended complaint separately”
and therefore “request an extension of time within which to file all responsive pleadings up to and
including April 11, 2017.”11 The undersigned finds that filing separate responsive pleadings to the
Original Petition and Amended Complaint would be unwieldly, and that instead Plaintiffs should
be required to submit one comprehensive complaint to which Defendants are required to respond.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ First Amended Complaint (R. Doc. 46) be
STRICKEN from the record.
IT IS FURTHER ORDERED that Plaintiffs file a comprehensive amended complaint
(i.e., a pleading which includes all of Plaintiffs’ active allegations and causes of action and which
does not incorporate by reference, refer to, or otherwise depend upon a previous pleading).
Plaintiffs’ comprehensive amended complaint shall not include any allegations or claims which
have been previously dismissed by this court with prejudice. Plaintiffs shall have seven (7) days
from the date of this Notice and Order to file the comprehensive amended complaint without
further leave of court.
IT IS FURTHER ORDERED that Defendants shall have twenty-one (21) days from the
filing of the comprehensive amended complaint to file responsive pleadings.
IT IS FURTHER ORDERED that in light of the above, Defendants’ Motion for
Extension of Time in Which to File Responsive Pleading to Amended Complaint12 and a Motion

10

R. Doc. 49, ¶ 7.
R. Doc. 49, ¶ 8.
12
R. Doc. 49.
11

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to Expedite Consideration of Motion for Extension of Time in Which to File Responsive Pleading
to Amended Complaint13 are TERMINATED AS MOOT.
Signed in Baton Rouge, Louisiana, on March 23, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

13

R. Doc. 50.

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