Xenos, Inc. et al v. Tilly's, Inc.

Filing 30

MEMORANDUM AND ORDER - IT IS ORDERED: The plaintiff's motion to amend, (Filing No. 26 ), is granted. On or before November 15, 2013, the plaintiff shall file its amended complaint, a copy of which is attached to its motion. The plaintiff shall thereafter promptly effectuate service upon World of Jeans and Tops, Inc. All deadlines within the court's initial progression order, (Filing No. 16 ), remain in effect. Ordered by Magistrate Judge Cheryl R. Zwart. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
XENOS, INC., a Nebraska corporation; and
OTTILIA CHAPMAN, an individual;
8:13CV202
Plaintiffs,
vs.

MEMORANDUM AND ORDER

TILLY'S, INC., a Delaware corporation;
Defendant.
The plaintiff has again moved to amend its complaint to add World of Jeans and Tops, Inc.
(WOJT) as a named defendant. (Filing No. 26). The plaintiff’s previous motion to add WOJT as a
defendant was denied. (Filing No. 25). In its order denying the motion, the court explained that
the sole allegation against WOJT was that it operated the Tilly’s clothing business as a “joint
enterprise” with defendant Tilly’s, Inc., and this “mere conclusory allegation” was “insufficient
under the pleading standards of Iqbal and Twombly.” (Filing No. 25, at CM/ECF p. 4).
The proposed amended complaint now before the court alleges Tilly’s, Inc. and WJOT
operate the “Tilly’s” retail store at the Westroads Mall in Omaha, Nebraska as a joint effort for a
mutual profit, and for the common purpose of a national effort to establish the brand name
“Tilly’s” throughout the United States, and that Tilly’s Inc. and WOJT share the direction,
supervision and control of the Tilly’s retail store. (Filing No. 26, at CM/ECF p. 6, ¶¶ 13-14).

The defendants oppose plaintiff’s current motion to amend, and have submitted evidence
stating there is no factual support for the allegations in the proposed amended complaint. The
question of whether the plaintiff’s claims are supported by the evidence should be decided by a
motion for summary judgment or at trial, and not on a motion to file an amended complaint.1
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As stated in Rule 11 of the Federal Rules of Civil Procedure, “[b]y presenting to the court
a pleading, written motion, or other paper—whether by signing, filing, submitting, or later
advocating it—an attorney . . . certifies that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances. . . the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery. . . .” Fed. R. Civ. P. 11(b). If the
attorney violates Rule 11(b), sanctions can be awarded against counsel under Rule 11(c).

Assuming the truth of plaintiff’s factual allegations in the proposed amended complaint, the
complaint sufficiently alleges a claim for recovery against not only Tilly’s, Inc., but also World of
Jeans and Tops, Inc.

Accordingly,
IT IS ORDERED:
1)

The plaintiff’s motion to amend, (Filing No. 26), is granted.

2)

On or before November 15, 2013, the plaintiff shall file its amended complaint, a
copy of which is attached to its motion. The plaintiff shall thereafter promptly
effectuate service upon World of Jeans and Tops, Inc.

3)

All deadlines within the court’s initial progression order, (Filing No. 16), remain in
effect.

November 12, 2013
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink
ceases to work or directs the user to some other site does not affect the opinion of the court.

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