Chesemore et al v. Alliance Holdings, Inc. et al

Filing 93

ORDER denying as moot 17 , 18 and 39 Motions to Dismiss. Granting 87 Stipulation for Waiver of Service and Time for Defendants to Respond to Amended Complaint. Defendants may have until 3/1/2010 to respond to amended complaint. Signed by Chief Judge Barbara B. Crabb on 2/2/2010. (vob)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------C A R O L CHESEMORE, DANIEL DONKLE, T H O M A S GIECK, MARTIN ROBBINS and N AN N ET T E STOFLET, on behalf of themselves, Individually, and on behalf of all others similarly situated, ORDER Plaintiffs, 0 9 - c v -4 1 3 - v i s 1 v. AL L IAN C E HOLDINGS, INC., A.H.I., INC., D A V ID B. FENKELL, PAMELA KLUTE, JAM ES MASTRANGELO, STEPHEN W. PAGELOW, JEFFREY A. SEEFELDT, ALPHA INVESTMENT CONSULTING GROUP, LLC and JOHN MICHAEL MAIER, D efendan ts, an d T R AC H T E BUILDING SYSTEMS, INC. EMPLOYEE STOCK OWNERSHIP PLAN and ALLIANCE HOLDINGS, INC.

The parties have declined the jurisdiction of the magistrate judge. Because no Article III judge has been assigned to this case, I have assumed jurisdiction over the case tem po rarily to resolve the parties' current disputes.

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EM PL O Y EE STOCK OWNERSHIP PLAN, N om inal Defendants. --------------------------------------------T his is a proposed class action brought under the Employee Retirement Income S ecurity Act, 29 U.S.C. §§ 1001-1461. After defendants Alliance Holdings, Inc., David B. F en kell, Eric M. Lynn, James Mastrangelo, Stephen W. Pagelow, Jeffrey A. Seefeldt, and filed motions to dismiss in this case, dkts. ## 17, 18 and 39, plaintiffs Carol Chesemore, D an iel Donkle, Thomas Gieck and Martin Robbins filed an amended complaint, adding a p lain tiff (Nannette Stoflet) and several defendants (A.H.L., Inc., Alpha Investment C o nsulting Group, LLC and John Michael Maier) and removing one defendant (Eric M. L yn n )an d changing their theories of liability for certain defendants. Generally, "when a plaintiff files an amended complaint, the new complaint supersedes all previous complaints an d controls the case from that point forward." Massey v. Helman, 196 F.3d 727, 735 (7th C ir. 1999). Thus, defendants' motions to dismiss plaintiffs' original complaint, dkts. ## 17 , 18 and 39 are DENIED as moot, even though some of the claims at issue in the first m otio ns to dismiss have been included in the amended complaint. I anticipate that defendants will seek dismissal of the amended complaint. Indeed, th ey are seeking guidance regarding whether the court would prefer that they simply

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supp lem ent the original motions or file new motions with new briefs.

Dkt. #86.

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supp lem ent will do; there is no need to repeat what has already been said in new briefs. H o w e ver , in their supplement, defendants should make it clear that they are seeking dism issal of the amended complaint and incorporate by reference their earlier arguments. Plaintiffs and the new defendants have agreed to waive the standard deadlines for service and for filing a responsive pleading and have agreed upon a deadline of March 1, 20 10 for the new defendants to file an answer or otherwise respond to the amended com plaint. That request for a change in deadlines, dkt. #87, will be GRANTED. Because it is likely that the new defendants will also file motions to dismiss, the original defendants m ay have until March 1, 2010 in which to move for dismissal and supplement their original argum ents for dismissal.

ORDER IT IS ORDERED that newly added defendants A.H.L., Inc., Alpha Investment C on sulting Group, LLC and John Michael Maier may have until March 1, 2010, in which to file an answer or responsive motion and original defendants Alliance Holdings, Inc., David B. Fenkell, Eric M. Lynn, James Mastrangelo, Stephen W. Pagelow, Jeffrey A. Seefeldt, may h ave until the same day, March 1, 2010, in which to move for dismissal and supplement

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th eir original arguments for dismissal. E n tered this 2 n d day of February, 2010.

B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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