Fogel v. Enhanced Recovery Company, LLC d/b/a ERC

Background

The opinion states that Enhanced Recovery Company, LCC, doing business as ERC, filed a motion to dismiss Sarah Fogel’s complaint under Federal Rule of Civil Procedure 12(b)(6) on April 13, 2022. The order does not identify the legal claims or explain the alleged deficiencies in the complaint. Fogel brought the case individually and on behalf of other similarly situated people, but the order does not address whether any class was certified.

Order

The court ordered Fogel to notify it by letter no later than April 25, 2022, whether she intended to file an amended complaint in response to the motion or would rely on the complaint already challenged by the motion.

If Fogel chose not to amend, the motion to dismiss would proceed under the regular briefing schedule. The court also stated that it was unlikely to give Fogel another opportunity to amend to address deficiencies made apparent by the fully briefed arguments in the motion.

If Fogel chose to amend, she had to file the amended complaint no later than 14 days after notifying the court of that decision. Within 21 days after the amendment, Enhanced Recovery Company could answer the amended complaint, file a motion to dismiss it, or notify the court by letter that it would rely on its initial motion to dismiss. The order stated that the time for opposing and reply papers would be governed by the Federal Rules of Civil Procedure and the Local Civil Rules unless the court ordered otherwise.

Disposition

Judge Vincent L. Briccetti’s order did not grant or deny the motion to dismiss. It directed Fogel to choose between amending her complaint and proceeding on the existing complaint, and it set out the defendant’s options if she amended.