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In re Hydroxycut Marketing and Sales Practices Litigation

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 18, 2010

IN RE HYDROXYCUT MARKETING AND SALES PRACTICES LITIGATION
ANDREW NOLLEY, PLAINTIFF,
v.
MUSCLETECH RESEARCH AND DEVELOPMENT, INC., IOVATE HEALTH SCIENCES USA, INC., AND GNC CORPORATION, DEFENDANTS.

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT AND DENYING AS MOOT DEFENDANTS' MOTIONS TO DISMISS

On April 2, 2010, defendants Iovate Health Sciences U.S.A., Inc. and Muscletech Research and Development, Inc. filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 9(b), 12(b)(1), and 12(b)(6).*fn1 On that same date, defendant GNC Corporation filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).*fn2

The hearing on both motions was set for June 25, 2010. On June 4, 2010, attorneys for plaintiff Andrew Nolley filed a Motion for Leave to Amend Complaint.*fn3 On June 7, 2010, the Court ordered Defendants to file a response, if any, to Plaintiff's Motion for Leave to Amend.*fn4 Pursuant to that order, Defendants filed a Response stating, "Defendants do not have any objection to Plaintiff filing an amended complaint as a general matter," but that Plaintiff's proposed amendments only cured some and not all of the pleading defects.*fn5

Upon review of the papers submitted by the parties, the Court hereby orders as follows:

1. Plaintiff's Motion for Leave to Amend is GRANTED.

2. The scope of the leave granted is not limited to the amendments proposed by Plaintiff, but shall be broad enough to permit Plaintiff to make any and all amendments he deems appropriate or necessary to cure any defects alleged by Defendants.

3. The two pending Motions to Dismiss [09md2087 - Docket Entries 146 and 147] are DENIED as moot since the original complaint will no longer be the operative complaint once Plaintiff files his First Amended Complaint in this case.

IT IS SO ORDERED.

Honorable Barry Ted Moskowitz United States District Judge


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