White Knight Diner et al v. Arbitration Forums, Inc. et al

Filing 214

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Strike Third Amended Complaint 210 is DENIED. IT IS FURTHER ORDERED that within seven (7) days of the date of this Order, Defendant shall file a notice with the Court as to how it wishes to proceed on its motion to dismiss. Signed by District Judge John A. Ross on 7/11/2019. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WHITE KNIGHT DINER, LLC, et al.,
Plaintiffs,
v.
ARBITRATION FORUMS, INC., et al.,
Defendants.

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No. 4:17-CV-02406 JAR

MEMORANDUM AND ORDER
The background of this case is set out in detail in the Court’s March 25, 2019 Order of
Dismissal (Doc. No. 186) and will not be repeated here. As relevant to Defendant Owners Insurance

Company’s pending motion to dismiss (Doc. No. 204) and motion to strike “Third Amended
Complaint” (Doc. No. 210), the Court subsequently vacated its March 25 Order of Dismissal as it
related to Defendant Owners and the three named Plaintiffs. The Court severed the claims brought
against Owners by these Plaintiffs, as well as Owners’ counterclaim, for further proceedings and
ordered Plaintiffs to refile a separate complaint against Owners. (Doc. No. 194).
On May 13, 2019, Plaintiffs filed a separate pleading titled “Complaint.” The Complaint
removed certain plaintiffs and defendants but included the same Counts and allegations from the
previous class action complaint. (Doc. No. 200). On May 28, 2019, Owners moved to dismiss with

prejudice Counts III through VI of Plaintiff’s “Complaint.” 1 Plaintiffs requested and were
granted an extension of time to respond to Owners’ motion to dismiss, up to and including June
18, 2019. (Doc. Nos. 206, 207). On June 18, 2019, Plaintiffs filed their Third Amended
Complaint “as of right against Defendant Owners pursuant to Fed. R. Civ. P. 15(a).” (Doc. No.
1

Count III of the Complaint asserts a claim for unjust enrichment; Count IV asserts a claim for money
had and received; Count V asserts a claim for compensatory damages; and Count VI asserts a claim for
punitive damages.

208 at ¶ 34). Owners moves to strike the Third Amended Complaint on the grounds that it was
filed without consent or leave of the court and in response to a motion to dismiss in an effort to
delay these proceedings. In their opposition to Owners’ motion to strike, Plaintiffs maintain that
their complaint constitutes a new pleading which they would have the opportunity to amend
more substantively under Rule 15.
The Court notes it was the agreement and intent of the parties to proceed in this case with
the filing of a separate complaint against Owners. Although Plaintiffs have not complied with the
Federal Rules of Civil Procedure, in order to effect the parties’ agreement and intent, the Court
will allow and consider Plaintiffs’ “Third Amended Complaint.” However, no further
amendments will be allowed. The Court reminds the parties that they must comply with the
Federal Rules.
With regard to Owners’ motion to dismiss, although an amended complaint typically
moots a previously filed motion to dismiss, upon notice to the Court, Owners may elect to have
its motion to dismiss applied to Plaintiffs’ Third Amended Complaint. Alternatively, Owners
may elect to file a new motion to dismiss the Third Amended Complaint, at which time the Court
will address the merits of Owners’ arguments.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Strike “Third Amended
Complaint” [210] is DENIED.
IT IS FURTHER ORDERED that within seven (7) days of the date of this Order,
Defendant shall file a notice with the Court as to how it wishes to proceed on its motion to
dismiss.

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Dated this 11th day of July, 2019.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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