Tropical Nut & Fruit Co. v. Forward Foods, LLC et al

Filing 39

ORDER denying without prejudice 23 Motion to Dismiss Count I of Defendants Counterclaims and to Strike Defendants Second and Third Defenses. Signed by Chief Judge Frank D. Whitney on 7/16/2013. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:13-CV-00131-FDW-DCK
TROPICAL NUT & FRUIT CO.,
Plaintiff,
vs.
FORWARD FOODS, LLC and
RECHARGE FOODS, LLC,
Defendants.

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ORDER

THIS MATTER is before the Court upon Plaintiff Tropical Nut & Fruit Co.’s Motion to
Dismiss Count I of Defendants’ Counterclaims and to Strike Defendants’ Second and Third
Defenses. (Doc. No. 23). In its Motion and accompanying Memorandum, (Doc. No. 24),
Plaintiff argues that Count I of Defendants Forward Foods, LLC and Recharge Foods, LLC’s
(collectively “Defendants”) Counterclaims should be dismissed under Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted,
and that Defendants’ Second and Third defenses to Plaintiff’s claims should be striken under
Rule 12(b)(6) and 12(f)(2) on the grounds that they are insufficient defenses and essentially
duplicate Count I of Defendants’ Counterclaims. Upon review by the Court, this Motion is
DENIED WITHOUT PREJUDICE. Plaintiff is free to raise these issues again at summary
judgment.
IT IS SO ORDERED.

Signed: July 16, 2013