Shanghai Foretex Fashion Co., Ltd. v. Wes and Willy, LLC

Filing 40

MEMORANDUM AND ORDER denying Plaintiff's 38 Motion to Compel. Plaintiff's motion to file a Second Amended Complaint, (Filing No. 24 ), is granted. The plaintiff's Second Amended Complaint shall be filed on or before August 1, 2014, and promptly served on defendant William J. Mullen.( Amended Complaint due by 8/1/2014). As to all parties, before moving for an order relating to discovery, the movant must first request a conference with the court. Ordered by Magistrate Judge Cheryl R. Zwart. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHANGHAI FORETEX FASHION CO.,
LTD.,
8:14CV106
Plaintiff,
vs.

MEMORANDUM AND ORDER

WES AND WILLY, LLC, RYCAM, INC.,
Defendants.
The plaintiff has filed a motion to file a Second Amended complaint, (Filing No.
24), and a motion to compel, (Filing No. 38). For the reasons discussed below, the
motion to amend will be granted, and the motion to compel will be denied.

1.

Motion to Amend.

Plaintiff, Shanghai Foretex Fashion Co., Ltd., ("Shanghai") has moved for leave to
file a Second Amended Complaint to add William J. Mullen as a party to this case.
(Filing No. 24).

The defendants oppose the motion, claiming the proposed Second

Amended Complaint does not allege Plaintiff’s fraud claims with sufficient particularity.
The defendants argue that “[a]ll of the claims (Second, Third, Fourth and Fifth Causes of
Action) asserted against Mullen in the proposed Second Amended Complaint are
predicated on . . . alleged False Statements,” and as to these claims, the proposed Second
Amended Complaint fails to meet the heightened pleading requirements of Rule 9(b).
(Filing No. 31).

As to the defendants’ alleged false statements, the Second Amended Complaint
mirrors the original and First Amended Complaint; that is, the Second Amended
Complaint is no less specific than the prior two complaints. Defense counsel did not
raise a Rule 9(b) objection to either of the prior complaints.

The proposed Second Amended Complaint raises allegations against not only the
entity defendants, but also their alleged contact person, William J. Mullen. Based on the
proposed Second Amended Complaint, Mullen was Shanghai’s primary point of contact
during business dealings with Wes and Willy, LLC and Rycam, Inc.; Mullen repeatedly
guaranteed that Wes and Willy, LLC and Rycam, Inc. would provide payment in full for
all products received from Shanghai; Mullen knew these representations were false;
Mullen made the statements to convince Shanghai to continue shipping products to the
defendants; and relying on Mullen’s false statements, Shanghai continued shipping
products to Wes and Willy, LLC and Rycam, Inc. The complaint outlines, by date and
amount, the invoice demands that remain unpaid. And it seeks recovery on theories of
fraud, unjust enrichment, equitable estoppel, and promissory estoppel. Read as a whole,
the complaint alleges “the who, what, when, where, and how,” (Summerhill v. Terminix,
Inc., 637 F.3d 877, 880 (8th Cir. 2011)), sufficient to withstand a Rule 9(b) motion—
particularly where the defendants previously considered the same allegations sufficient
for creating the parties’ Rule 26(f) Report and for initiating the discovery process.

The plaintiff’s motion to amend will be granted.

2.

Motion to Compel.

The plaintiff has moved to compel defendants’ responses to written discovery.
Nebraska Civil Rule 7.1(i) states:
To curtail undue delay in the administration of justice, this court only
considers a discovery motion in which the moving party, in the written
motion, shows that after personal consultation with opposing parties and
sincere attempts to resolve differences, the parties cannot reach an accord.
This showing must also state the date, time, and place of the
communications and the names of all participating persons. “Personal
consultation” means person-to-person conversation, either in person or on
2

the telephone. An exchange of letters, faxes, voice mail messages, or
emails is also personal consultation for purposes of this rule upon a
showing that person-to-person conversation was attempted by the moving
party and thwarted by the nonmoving party.
NECivR 7.1(i)(emphasis added). The plaintiff’s motion states counsel for the plaintiff
sent an email and a letter to defense counsel. There is nothing to indicate the attorneys
attempted to actually discuss the discovery issues raised—either personally or by
telephone. The plaintiff’s motion will not be considered or reviewed by the court unless
the parties discussed their discovery disputes and reached an impasse, or Plaintiff’s
counsel tried to discuss the discovery issues with defense counsel, but defense counsel
refused to talk about it or to return telephone calls.

Plaintiff’s motion to compel will be denied.

IT IS ORDERED:

1)

Plaintiff’s motion to file a Second Amended Complaint, (Filing No. 24), is
granted. The plaintiff’s Second Amended Complaint shall be filed on or
before August 1, 2014, and promptly served on defendant William J.
Mullen.

2)

Plaintiff’s motion to compel, (Filing No. 38), is denied.

3)

As to all parties, before moving for an order relating to discovery, the
movant must first request a conference with the court.

July 29, 2014.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

3