Smith v. Blitz U.S.A., Inc. et al

Filing 114

ORDER denying as moot 74 Motion to Dismiss, or in the alternative, Stay. If Kinderhook intends to move to dismiss the Second Amended Complaint, it shall file its Motion and supporting documents in accordance with Local Rule 7.1(b), rather than relying on those previously filed. (Written Opinion). Signed by Judge Richard H. Kyle on 06/27/12. (kll)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Robyn Smith for Devan VanBrunt, a minor,
by his mother and natural guardian,
Plaintiff,
Civ. No. 11-1771 (RHK/LIB)
ORDER

v.
Blitz U.S.A., Inc., et al.,
Defendants.

On March 5, 2012, Plaintiff filed a First Amended Complaint in this action, adding
as Defendants Kinderhook Capital Fund II, L.P. (the “Fund”) and Kinderhook Industries,
LLC (“Kinderhook,” and together with the Fund, the “Kinderhook Entities”). The
Kinderhook Entities moved to dismiss or, in the alternative, to stay the claims against
them, noticing their Motion for a hearing on June 18, 2012. The Court’s review of the
First Amended Complaint, however, left it unclear whether the parties were diverse, as
Plaintiff had failed to identify the Fund’s partners and Kinderhook’s members.
Accordingly, it struck the First Amended Complaint, canceled the hearing on the Motion,
and ordered Plaintiff to file a new Amended Complaint pleading with specificity the
identity and citizenship of each partner/member of the Kinderhook Entities. On June 11,
2012, Plaintiff filed a Second Amended Complaint, dropping her claims against
Kinderhook but continuing to press claims against the Fund. The allegations in the
Second Amended Complaint are sufficient to establish diversity jurisdiction over this
case.

Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that the Kinderhook Entities’ Motion to Dismiss or, in the alternative, Stay
(Doc. No. 74), which was directed at the First Amended Complaint, is DENIED AS
MOOT. If Kinderhook intends to move to dismiss the Second Amended Complaint, it
shall file its Motion and supporting documents in accordance with Local Rule 7.1(b),
rather than relying on those previously filed.

Date: June 27, 2012

s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

-2-