Payero v. Mattress Firm, Inc.

Filing 24

ORDER granting in part and denying in part 16 Motion to Dismiss. Defendant having moved to dismiss the first amended complaint pursuant to Rule 12(b)(1) for lack of standing and Rule 12(b)(6) for failure to state a claim (Doc. #16), it is here by ORDERED: 1. The Rule 12(b)(1) motion is DENIED. 2. The Rule 12(b)(6) motion is GRANTED with respect to the fraudulent omission and unjust enrichment claims, and DENIED with respect to the New York General Business Law §§ 349 and 350 claims, as well as the claim for breach of implied warranty and violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301. 3. A telephone conference is scheduled for January 28, 2022, at 10:15 a.m., at which time the C ourt will issue a bench ruling explaining the basis for its decision. This conference shall also serve as an initial conference in this matter, for which the Court will separately issue a Notice of Initial Conference. Counsel shall use the follow ing information to connect by telephone: Dial-In Number: (888) 363-4749 (toll free) or (215) 446-3662 Access Code: 1703567. 4. By January 21, 2022, counsel shall file on the ECF docket their proposed Civil Case Discovery Plan and Scheduli ng Order, the blank form for which will be attached to the Notice of Initial Conference. 5. Defendant shall file its answer by January 21, 2022. 6. The Clerk is instructed to terminate the motion. (Doc. #16). SO ORDERED. (Signed by Judge Vincent L. Briccetti on 1/7/2022) (tg)

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Case 7:21-cv-03061-VB Document 24 Filed 01/07/22 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x ANTONIO PAYERO and ADAM : MALDONADO, each individually and on : behalf of all others similarly situated, : Plaintiffs, : : v. : : MATTRESS FIRM, INC., : Defendant. : -------------------------------------------------------------x ORDER 21 CV 3061 (VB) Defendant having moved to dismiss the first amended complaint pursuant to Rule 12(b)(1) for lack of standing and Rule 12(b)(6) for failure to state a claim (Doc. #16), it is hereby ORDERED: 1. The Rule 12(b)(1) motion is DENIED. 2. The Rule 12(b)(6) motion is GRANTED with respect to the fraudulent omission and unjust enrichment claims, and DENIED with respect to the New York General Business Law §§ 349 and 350 claims, as well as the claim for breach of implied warranty and violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301. 3. A telephone conference is scheduled for January 28, 2022, at 10:15 a.m., at which time the Court will issue a bench ruling explaining the basis for its decision. This conference shall also serve as an initial conference in this matter, for which the Court will separately issue a Notice of Initial Conference. Counsel shall use the following information to connect by telephone: Dial-In Number: (888) 363-4749 (toll free) or (215) 446-3662 Access Code: 1703567 1 Case 7:21-cv-03061-VB Document 24 Filed 01/07/22 Page 2 of 2 4. By January 21, 2022, counsel shall file on the ECF docket their proposed Civil Case Discovery Plan and Scheduling Order, the blank form for which will be attached to the Notice of Initial Conference. 5. Defendant shall file its answer by January 21, 2022. 6. The Clerk is instructed to terminate the motion. (Doc. #16). Dated: January 7, 2022 White Plains, NY SO ORDERED: ____________________________ Vincent L. Briccetti United States District Judge 2

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