Gingras et al v. Rosette et al
ORDER ON MOTIONS: State of Vermont's 22 Motion for Leave to File an Amicus Brief is GRANTED. Defendants' 39 Motion to Moot the Motion to Dismiss and for Leave to File a 40-page memorandum of law in support of a new motion to dismiss is GRANTED. Defendants' 13 Motion to Dismiss without leave to amend, or, in the alternative, to Compel Arbitration is moot. The Court defers ruling on Plaintiffs' 43 Motion for Jurisdictional Discovery until receiving briefing on the new motion to dismiss. The Parties shall confer regarding the Discovery Schedule consistent with Local Rule26(a)(2).Signed by District Judge J. Garvan Murtha on 9/4/2015. (kak)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
ANGELA C. GIVEN and JESSICA
GINGRAS, on behalf of themselves and all
others similarly situated,
JOEL ROSETTE, TED WHITFORD, TIM :
MCINERNEY, THINK FINANCE, INC., :
TC LOAN SERVICE, LLC, KENNETH E. :
REES, TC DECISION SCIENCES, LLC, :
TAILWIND MARKETING, LLC,
SEQUOIA CAPITAL OPERATIONS, LLC :
and TECHNOLOGY CROSSOVER
Case No. 15-cv-101-jgm
ORDER ON MOTIONS FOR LEAVE TO FILE AMICUS BRIEF, TO MOOT MOTION TO
DISMISS, TO EXTEND PAGE LIMIT, AND FOR JURISDICTIONAL DISCOVERY
(Docs. 13, 22, 39, 43)
Plaintiffs Jessica Gingras and Angela Given (“Plaintiffs”), on behalf of a putative class of
individuals who took out payday loans from Plain Green, LLC (“Plain Green”), seek equitable relief
from Defendants, various individuals and entities allegedly involved with Plain Green’s business.
Numerous motions are now pending relating to the briefing of a motion to dismiss filed by
Defendants Rosette, Whitford and McInerney (“Defendants”).
Plaintiffs filed their Complaint on May 13, 2015. (Doc. 1.) On July 14, 2015, Defendants
moved to dismiss the Complaint, or in the alternative, to compel arbitration. (Doc. 13.) In
response, Plaintiffs amended their Complaint, doubling their factual allegations and adding seven
defendants and civil RICO claims. (Doc. 18.) Plaintiffs then filed their opposition to the motion to
dismiss on August 13, 2015. (Doc. 23.)
The present motions all relate to the pending motion to dismiss. Defendants seek an order
deeming their motion to dismiss moot, which would allow them to file a new motion to dismiss
responsive to the entire First Amended Complaint. (Docs. 39, 50.) Plaintiffs oppose mooting the
motion to dismiss on the grounds they wish to preserve their opposition (Doc. 42), and they request
jurisdictional discovery (Doc. 43, 51). Finally, the State of Vermont seeks leave to file an amicus
brief. (Doc. 22.)
Motion to Moot and Extend Page Limit
Defendants seek to moot their original motion to dismiss because Plaintiffs amended their
Complaint subsequent to the filing of that motion. They also request permission to file a 40-page
memorandum of law in support of their anticipated motion to dismiss. The Court grants the
Plaintiffs’ filing of the First Amended Complaint mooted the motion to dismiss and the
related briefing. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 120 n.2 (2d Cir. 2006)
(filing of amended complaint subsequent to defendants’ motion to dismiss mooted motion to
dismiss); Thompson v. Pallito, 949 F. Supp. 2d 558, 582 (D. Vt. 2013) (collecting cases). Where
Plaintiffs have substantially bolstered their factual allegations through amendments to the complaint,
it makes little sense for the Court to assess those claims based on briefing that does not consider the
additions.1 Plaintiffs oppose the motion based on a desire to preserve their brief. Cf. In re Colonial
Defendants propose, as an alternative, that they might file a consolidated motion to
dismiss the new claims with their reply. (Doc. 39, at 4 n.4.) This case is in its early stages, and the
Court finds no need to complicate briefing with this alternative procedure.
Ltd. P'ship Litig., 854 F. Supp. 64, 80 (D. Conn. 1994) (declining to moot motions to dismiss
following amendment when the court had already issued a partial and preliminary ruling and parties
had devoted an extraordinary amount of time and expense to the pending motions). But mooting
the motion to dismiss would not waste Plaintiffs’ whole effort, as they will presumably incorporate
much of their present opposition brief into a new opposition addressing the full scope of the First
Additionally, the Court grants Defendants permission to file a 40-page memorandum
accompanying their motion to dismiss the First Amended Complaint. Plaintiffs have not objected
(Doc. 39, at 1 n.1; Doc. 42) and the First Amended Complaint raises several new issues.
Motion for Jurisdictional Discovery
Plaintiffs move for an order permitting limited discovery related to subject matter
jurisdiction. Specifically, they seek discovery related to Defendants’ claimed immunities and
discovery to determine whether the relevant arbitration provision is unconscionable. (Doc. 43, at 23.) A district court has discretion to grant jurisdictional discovery where jurisdictional facts are in
dispute, see First City, Texas-Houston, N.A. v. Rafidain Bank, 150 F.3d 172, 176-77 (2d Cir. 1998),
or when the court must make a finding to determine arbitrability, see Oriental Commercial &
Shipping Co. v. Rosseel, N.V., 125 F.R.D. 398, 400 n.3 (S.D.N.Y. 1989) (pre-arbitration discovery
may be permitted). The Court will consider whether such discovery is warranted after reviewing the
parties’ briefing following a motion to dismiss the First Amended Complaint, and accordingly defers
ruling on this motion until filing of the new opposition. See, e.g., Freund v. Republic of France, 592
F. Supp. 2d 540, 562 (S.D.N.Y. 2008) (after reviewing the “allegations and arguments” on a motion
to dismiss, finding jurisdictional discovery unwarranted).
Leave to File Amicus Brief
The State of Vermont (“State”) seeks leave to file an amicus brief in support of Plaintiffs’
opposition to the motion to dismiss. No party has objected. The Court grants this motion. See Jin
v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008) (“District Courts have inherent
authority to appoint or deny amici which is derived from Rule 29 of the Federal Rules of Appellate
Procedure.”). The State shall file its brief on or before the date by which Defendants must file their
reply in support of their anticipated motion to dismiss.
Based on the foregoing, the State of Vermont’s motion for leave to file an amicus brief
(Doc. 22) is GRANTED.
Defendants’ motion to moot the motion to dismiss and for leave to file a 40-page
memorandum of law in support of a new motion to dismiss (Doc. 39) is GRANTED. Defendants’
motion to dismiss without leave to amend, or, in the alternative, to compel arbitration (Doc. 13) is
The Court defers ruling on Plaintiffs’ motion for jurisdictional discovery (Doc. 43) until
receiving briefing on the new motion to dismiss.
The Parties shall confer regarding the Discovery Schedule consistent with Local Rule
26(a)(2). See D. Vt. L.R. 26(a)(2).
Dated at Brattleboro, in the District of Vermont, this 4th day of September, 2015.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge
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