IHOP IP, LLC et al v. International House of Prayer et al

Filing 27

MOTION for leave to file Second Amended Complaint filed by Elizabeth A. Tassi on behalf of IHOP IP, LLC, International House of Pancakes, LLC. Suggestions in opposition/response due by 12/19/2011 unless otherwise directed by the court. (Attachments: # 1 Exhibit A - Second Amended Complaint)(Tassi, Elizabeth)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
IHOP IP, LLC et al.,

Plaintiffs,
vs.
INTERNATIONAL HOUSE OF PRAYER
et al.,

Defendants.

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Case No.: 11-0548-CV-W-FJG

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
AND SUGGESTIONS IN SUPPORT
Pursuant to Federal Rule of Civil Procedure 15(a)(2), Plaintiffs IHOP IP, LLC and
International House of Pancakes, LLC (collectively "IHOP") move the Court for leave to file a
Second Amended Complaint, which identifies the International House of Prayer East Bay
defendant by its official name and seeks monetary damages against such defendant. A copy of
the proposed Second Amended Complaint is attached hereto as Exhibit A. In support of this
motion, IHOP provides the following suggestions:
1.

The Scheduling and Trial Order, entered on October 25, 2011, establishes

December 2, 2011 as the deadline to file any motion to amend the pleadings. (Doc. #20).
2.

Through counsel for defendant International House of Prayer East Bay, IHOP has

recently learned that the name "International House of Prayer East Bay" is a fictitious trade name
and the official name of the entity is The Prayer Furnace, Inc. Upon information and belief, The
Prayer Furnace, Inc. is the real party in interest and proper named defendant for all acts attributed
to International House of Prayer East Bay in the First Amended Complaint and all claims

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asserted against International House of Prayer East Bay in the First Amended Complaint. The
Second Amended Complaint identifies the entity sued by its official name.
3.

In addition, the Second Amended Complaint includes a request for monetary

damages against The Prayer Furnace, Inc. This additional remedy is sought because IHOP has
recently learned more information about the extent to which The Prayer Furnace, Inc. has used
IHOP's trademarks to promote itself and sell or otherwise distribute services and products.
4.

There is a "well-recognized distinction between a complaint that sues the wrong

party, and a complaint that sues the right party by the wrong name." Roberts v. Michaels, 219
F.3d 775, 777-778 (8th Cir. 2000).

Although a defendant corporation has the right to be

accurately named in the pleadings, in a "true misnomer situation" where the plaintiff has named
and served the right defendant by the wrong name, it is proper for the Court to grant a plaintiff
leave to amend where "a mere misnomer [has] injured no one, and there is no reason why it
should not [be] corrected by amendment." Id. at 778.

"This misnomer principle is most

obviously appropriate in cases where the plaintiff has sued a corporation but misnamed it." Id.;
see Locke v. ABB Power T & D, No. 07-4042-CV-C-NKL, 2007 WL 2026390, at *1 (W.D. Mo.
July 9, 2007) (granting plaintiff leave to amend complaint to correct legal name of defendant).
5.

IHOP's motion is timely as it has been filed within the timeframe set by the Court

to file such a motion. Discovery is ongoing, and the trial date is more than a year off. The
request does not impact the remainder of the deadlines in the Scheduling Order or prejudice any
party. The Prayer Furnace, Inc. had notice that the case was pending, given that it answered the
First Amended Complaint. This motion is not made for vexation or delay, but is made in good
faith for the purpose of obtaining a fair and impartial trial on IHOP's claims against the real party
in interest.
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6.

For these reasons, IHOP respectfully requests that the Court grant its motion for

leave to file its proposed Second Amended Complaint.

Respectfully submitted,

/s/Elizabeth A. Tassi
Mark D. Hinderks (MO Bar No. 58124)
Mark M. Iba (MO Bar No. 45452)
Elizabeth A. Tassi (MO Bar No. 59621)
STINSON MORRISON HECKER LLP
1201 Walnut Street, Suite 2900
Kansas City, Missouri 64106
[phone] (telephone)
[phone] (facsimile)
Attorneys for Plaintiffs
INTERNATIONAL HOUSE OF PANCAKES,
LLC and IHOP IP, LLC

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CERTIFICATE OF SERVICE
I hereby certify that on December 2, 2011, a true and correct copy of the foregoing
document was filed electronically via CM/ECF in the United States District Court for the
Western District of Missouri, with notice of same being electronically served by the Court,
addressed to:
Keith J. Grady
John M. Challis
POLSINELLI SHUGHART PC
100 S. Fourth Street, Suite 1000
St. Louis, MO 63102
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
Lauren Tucker McCubbin
POLSINELLI SHUGHART PC
Twelve Wyandotte Plaza
120 West 12th Street, Suite 1800
Kansas City, MO 64105
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendants
INTERNATIONAL HOUSE OF PRAYER,
FRIENDS OF THE BRIDEGROOM, INC.,
SHILOH MINISTRIES, INC., and MIKE BICKLE
Diane Waters
BENNETT, BODINE & WATERS, P.A.
11125 Johnson Drive
Shawnee, KS 66203
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorney for Defendant
THE PRAYER FURNACE, INC.
d/b/a INTERNATIONAL HOUSE OF
PRATER EAST BAY
/s/Elizabeth A. Tassi
ATTORNEY FOR PLAINTIFFS
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