Carter v. DSW Shoe Warehouse, Inc.
- Philip Halpern
- 7:23-cv-04761
- U.S. District Court · Southern District of New York
- 2
In Carter v. DSW Shoe Warehouse, Inc., Judge Halpern denied DSW’s motion to dismiss and request to strike class allegations.
The ruling allowed Tremain Carter and the other plaintiffs’ complaint and class allegations to remain in the case for the time being, while requiring DSW Shoe Warehouse, Inc. to answer by September 20, 2023.
What happened
In Carter v. DSW Shoe Warehouse, Inc., the court considered DSW’s proposed motion to dismiss the complaint under Rules 12(b)(1) and 12(b)(6), along with a request to strike certain class allegations. The court treated the parties’ pre-motion letters as the motion and opposition and heard argument by telephone.
The court denied DSW’s motion to dismiss. It cited decisions from the Southern District of New York and the Second Circuit rejecting DSW’s arguments about standing and whether the plaintiffs had a private right to sue. The court also said an 1894 Attorney General report was not binding and did not undermine those decisions.
Judge Philip M. Halpern also denied DSW’s request to strike the class allegations because the request was premature and better considered after discovery, at the class-certification stage. DSW was directed to file its answer by September 20, 2023.
The detailed version
- Carter v. DSW Shoe Warehouse, Inc. · No. 7:23-cv-04761
- Philip Halpern
- Sept. 6, 2023
Proceedings
Counsel for all parties appeared by telephone for a pre-motion conference. The court heard argument concerning DSW’s contemplated motion to dismiss the plaintiffs’ complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and DSW’s request to strike certain class allegations.
The court treated DSW’s pre-motion letter as the motion to dismiss and the plaintiffs’ response letter as the opposition. It considered the written submissions and the argument presented on the record.
Rulings
The court denied DSW’s motion to dismiss under Rules 12(b)(1) and 12(b)(6). The court cited district court decisions in the Second Circuit that rejected DSW’s arguments concerning standing and a private right of action. The court also determined that the Attorney General Report of 1894 was not binding and was not new evidence or legislative history that would undermine the cases addressing those issues. The court stated that it was ruling consistently with other cases in the Circuit that had considered the issues.
The court separately denied DSW’s request to strike certain class allegations. It found that request premature and said the issue was more properly considered after discovery, during the class-certification stage.
Further Direction
The court directed DSW to file its answer by September 20, 2023. The order refers to a transcript for additional details.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.