Dicks v. Baby Banz, Inc.
- Vernon Broderick
- 1:22-cv-07827
- U.S. District Court · Southern District of New York
- 1
In Dicks v. Baby Banz, Judge Broderick ordered the defendant to choose how to proceed with its pending dismissal motion.
Victoria Dicks and Baby Banz, Inc.; the order specifically requires Baby Banz, Inc. to file a letter within seven days.
What happened
In Dicks v. Baby Banz, Inc., Victoria Dicks filed an amended complaint on November 30, 2022, while Baby Banz’s motion to dismiss was still pending.
The court gave Baby Banz seven days to state whether it wanted the pending motion treated as no longer active, with permission to file a new motion under the federal civil-procedure rules, or whether the court should consider the existing motion based on the amended complaint.
Judge Vernon S. Broderick did not decide the motion to dismiss in this order. Instead, he ordered Baby Banz to file a letter explaining which option it chose.
The detailed version
- Dicks v. Baby Banz, Inc. · No. 1:22-cv-07827
- Vernon Broderick
- Dec. 2, 2022
Background
Victoria Dicks filed an amended complaint on November 30, 2022, under Federal Rule of Civil Procedure 15(a)(1)(B). Baby Banz, Inc. had already filed a motion to dismiss, and that motion remained pending.
Order
The court explained that when a plaintiff properly amends a complaint while a motion to dismiss is pending, the court may either deny the pending motion as moot or evaluate it using the allegations in the amended complaint.
The court ordered Baby Banz, Inc. to file a letter within seven days choosing between two options: asking that its current motion to dismiss be treated as moot, without prejudice to filing a new motion under Rule 15(a)(3), or asking the court to evaluate the current motion in light of the amended complaint.
Disposition
This order did not grant or deny the motion to dismiss and did not decide the claims. It directed the defendant to state how it wanted the court to proceed.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.