Eppes v. MMM Consumer Brands, Inc.

Full title: DANIELLE EPPES, individually and on behalf of all others similarly…

Court: United States District Court, S.D. New York

Case no: 22 Civ. 6341 (KPF)

Date published: Dec 29, 2022

Facts: 

The court held a conference to discuss the defendant’s motion to compel arbitration or, alternatively, to dismiss. During the conference, the court expressed a preference for any amended pleadings to be filed before motion practice. However, the plaintiff’s counsel represented that the plaintiff did not intend to amend her pleading. Despite this representation, the plaintiff later filed an amended complaint after the expiration of the 21-day period following the defendant’s motion.

Issue: 

Whether the plaintiff’s amended complaint, filed after the expiration of the 21-day period following the defendant’s motion under Rule 12(b), should be accepted by the court.

Decision: 

The court acknowledges that the plaintiff’s amended complaint was filed after the authorized time period. However, to minimize waste of resources, the court decides to accept the amended complaint under Federal Rule of Civil Procedure 15(a)(2). The defendant is given an opportunity to advise the court whether it wishes to file an answer to the amended complaint or renew its motion. If the defendant chooses to proceed with its motion, it must provide a proposed briefing schedule consented to by the plaintiff. The court will accept a supplement to the defendant’s original motion, not to exceed 10 pages, in lieu of an entirely new brief. The motion at docket entry 16 is terminated by the Clerk of Court.

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