Vista Food Exchange, Inc. v. Champion Foodservice, L.L.C. et al

Filing 28

OPINION re: 24 MOTION to Alter Judgment re: 23 Clerk's Judgment, 22 Memorandum & Opinion, filed by Vista Food Exchange, Inc. The Plaintiff's motion to alter or amend the August 7 Judgment is denied. Leave to file the AC is granted. It is so ordered. (Signed by Judge Robert W. Sweet on 11/3/2014) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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VISTA FOOD EXCHANGE, INC.,
14 Civ. 804

Plaintiff,

OPINION

-againstCHAMPION FOODSERVICE, LLC,
BC&G WEITHMAN CONSTRUCTION CO., INC.,
TYRONE WEITHMAN, ASHLEY SIMPSON,
and LINDA ATKINSON,
Defendants.

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A P P E A RA N C E S:

Attorneys for Plaintiff
JONATHAN C. SCOTT, P.C.
100 Highland Park Village
Suite 200
Highland Park, TX 75205
By:
Jonathan C. Scott, Esq.

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BAILEY & OROZCO, L.L.C.
744 Broad Street
Newark, NJ 07102
By:
Michael A. Orozco, Esq.

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Sweet, D.J.

The plaintiff Vista Food Exchange,

Inc.

("Vista" or

the "Plaintiff") has moved pursuant to Federal Rule of Civil
Procedure 59(e) to alter or amend the judgment of this court
entered August 7, 2014

(the "August 7 Judgment") and pursuant to

Rule 15(a) for leave to file the amended complaint ("AC").

The

motion to alter or amend the August 7 Judgment is denied, and
the motion for leave to file the AC is granted.

Prior Proceedings

The prior proceedings were set forth in the 50-page
opinion of the court filed August 5, 2014

(the "August 5

Opinion") upon which the August 7 Judgment was based.

The instant motions were heard and marked fully
submitted on September 24, 2014.

The Motion to Alter or Amend the August 7 Judgment is Denied

No adequate grounds to satisfy the requirements of
Rule 59(e) have been set forth by the Plaintiff.
alter or amend the August 7 Judgment is denied.
1

The motion to

Leave to File the AC is Granted

The Defendants Champion Food Service, LLC ("Champion),
BC&G Weithman Construction Co. Inc.

("BC&G"), Tyrone Weithman

("Weithman"), Ashley Simpson ("Simpson") and Linda Atkinson
("Atkinson"), collectively (the "Defendants") have opposed the
Plaintiff's Rule 15(a) motion on the grounds of futility,
asserting that the AC has been proposed in bad faith and fails
to cure the deficiencies noted in the August 5 Opinion.

While these issues may ultimately be resolved in the
Defendants' favor,

"Fed. R. Civ. P. 15(a) requires that leave

[to amend] shall be freely given when justice so requires."
Ronzani v. Sanofi S.A., 899 F.2d 195, 198
v. Davis, 371 U.S. 178, 182 (1962).

(2d Cir. 1990); Foman

The standard is a

"'permissive' one that is informed by a

'strong preference for

resolving disputes on the merits'" Crawford v. Recovery
Partners, No. 12 Civ. 8520, 2014 U.S. Dist. LEXIS 59310, at *3-4
(S.D.N.Y. Apr. 28, 2014)
F.3d 208, 212-13

(citing Williams v. Citigroup Inc., 659

(2d Cir. 2011), which is reflected as a "strong

preference for allowing plaintiffs to amend" pleadings that have
been dismissed as inadequate.

In re Bear Stearns Cos., No. 08

MDL 1963; 07 Civ. 10453, 2011 U.S. Dist. LEXIS 103061, at *7
2

(S.D.N.Y. Sept. 6, 2011); see Ronzani, 899 F.2d at 198 ("When a
motion to dismiss is granted, the usual practice is to grant
leave to amend the complaint").

Because a direct resolution of these issues presented
by the Defendants is desirable, leave to file the AC is granted.

However, it should be noted that the Defendants'
opposition constitutes fair warning to the Plaintiff that could
give rise to sanctions should grounds for the Defendants'
opposition be established.

Conclusion

The Plaintiff's motion to alter or amend the August 7
Judgment is denied.

Leave to file the AC is granted.

It is so ordered.

Dated:

New York, New York
November 3, 2014

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