Frickco Incorporated v. Nehmeh Enterprises, Inc. et al

Filing 25

ORDER granting Motion for Leave to File first amended class action complaint and to add party defendants 23 and denying Motions to Dismiss 12 21 as moot. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FRICKCO INCORPORATED,
a Michigan corporation, individually
and as the representative of a class
of similarly situated persons,
Plaintiff,
Case No. 11-CV-11168
HON. GEORGE CARAM STEEH

v.
NEHMEH ENTERPRISES, INC.
d/b/a LITTLE CAESAR’S, LITTLE
CAESAR ENTERPRISES, INC.,
LITTLE CAESAR DETROIT DMA
ADVERTISING PROGRAM, INC.,
and CAESAR FUND, INC.,
Defendants.
_____________________________/

ORDER GRANTING MOTION FOR LEAVE TO FILE FIRST AMENDED CLASS
ACTION COMPLAINT AND TO ADD PARTY DEFENDANTS (#23) AND
DENYING MOTIONS TO DISMISS (#12 AND #21) AS MOOT
On March 22, 2011, plaintiff filed a class action complaint alleging defendants
violated the Telephone Consumer Protection Act, 47 U.S.C. §227, by sending unsolicited
advertising faxes to plaintiff and others, and alleging conversion on the same basis. On
April 15, 2011, defendants Little Caesar Enterprises, Inc., Little Caesar Detroit DMA
Advertising Program, Inc., and Caesar Fund, Inc. (the “Little Caesar defendants”) filed a
motion to dismiss. Upon stipulation of the parties, the time for defendant Nehmeh
Enterprises, Inc. (“Nehmeh”) to respond to the complaint was extended to May 16, 2011.
On May 10, 2011, defendant Nehmeh filed a motion to dismiss. On May 11, 2011, plaintiff
filed a motion for leave to file a first amended complaint and to add parties. Plaintiff seeks

leave to add Ali Nehmeh, Capitol Communications, Inc., and Lester Morales as additional
party defendants, and to dismiss without prejudice the Little Caesar defendants. The Little
Caesar defendants assent to plaintiff’s motion. Defendant Nehmeh does not assent to
plaintiff’s motion.

However, as noted by plaintiff, Federal Rule of Civil Procedure

15(a)(1)(B) allows a plaintiff to amend its complaint without leave within twenty-one days
after service of a motion under Rule 12(b). Because plaintiff filed its motion and first
amended complaint within twenty-one days after service of defendant Nehmeh’s motion
to dismiss, and the Little Caesar defendants agree to the amendment, plaintiff’s request for
leave to amend is granted. While making no determinations regarding the sufficiency of
plaintiff’s first amended complaint, the court believes the pending motions to dismiss are
moot in light of the new pleading. Defendants may file a new motion within the applicable
time limit.
IT IS HEREBY ORDERED that plaintiff’s motion for leave to file first amended
complaint and add party defendants is GRANTED, defendant Nehmeh’s motion to dismiss
is DENIED without prejudice as moot, defendants Little Caesar Enterprises, Inc., Little
Caesar Detroit DMA Advertising Program, Inc., and Caesar Fund, Inc.’s motion to dismiss
is DENIED without prejudice as moot, and defendants Little Caesar Enterprises, Inc., Little
Caesar Detroit DMA Advertising Program, Inc., and Caesar Fund, Inc. are dismissed
without prejudice.
SO ORDERED.
Dated: May 17, 2011
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 17, 2011, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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