Calcano v. Schott NYC Corp.
- Lewis Liman
- 1:19-cv-11382
- U.S. District Court · Southern District of New York
- 1
In Calcano v. Schott NYC Corp., Judge Liman lifted the stay and set deadlines for amendment or renewal of a dismissal motion after a Second Circuit decision.
Evelina Calcano, the proposed class of similarly situated persons, and Schott NYC Corp.; the order set the next steps after the stay was lifted.
What happened
Calcano v. Schott NYC Corp. had been paused while the Second Circuit considered related appeals involving the same issues. Schott NYC Corp. had filed a motion to dismiss for failure to state a claim and lack of standing, and no answer had been filed.
The Second Circuit later held that conclusory statements that plaintiffs intended to return to the defendants’ stores were not enough to show standing. The district court directed Evelina Calcano to decide whether to amend her complaint in light of that decision or proceed with the original complaint.
The court lifted the stay and set deadlines for Calcano’s letter and any amended complaint. If she does not amend, Schott may renew the previously denied-without-prejudice motion to dismiss or answer; if she amends, Schott may challenge the amended complaint or answer. Judge Lewis J. Liman did not decide the standing or failure-to-state-a-claim issues in this order.
The detailed version
- Calcano v. Schott NYC Corp. · No. 1:19-cv-11382
- Lewis Liman
- July 18, 2022
Background
The court had stayed the case while the Second Circuit considered appeals addressing the same issues and arguments. Before the stay, Schott NYC Corp. had filed a motion to dismiss the complaint for failure to state a claim and lack of standing. The opinion states that no answer had been filed.
Second Circuit Decision
The Second Circuit issued a decision in a consolidated appeal involving related claims. It held that plaintiffs’ conclusory allegations that they intended to return to the defendants’ stores were insufficient to establish standing. The mandate had issued by the time of this order.
Order
The court ordered Evelina Calcano to submit a letter within 30 days stating whether she intended to amend her complaint in light of the Second Circuit’s decision or would stand on the original complaint. If she intended to amend, she had 45 days from the order to do so. If she amended, Schott could move against the amended complaint or answer.
If Calcano did not amend, Schott had to state within 14 days after her decision or the expiration of her amendment period whether it would renew the motion to dismiss that the order identifies as denied without prejudice or answer. The court also directed the Clerk of Court to lift the stay. This order established the next procedural steps; it did not decide whether Calcano had standing or whether the complaint stated a claim.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.