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In re Hydroxycut Marketing and Sales Practices Litigation

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 1, 2010

IN RE HYDROXYCUT MARKETING AND SALES PRACTICES LITIGATION
DEBRA RUTHERFORD, DANA CRAWFORD, MICHAEL MAGGARD, TRAVIS D. HORTON, PLAINTIFFS,
v.
MUSCLETECH RESEARCH AND DEVELOPMENT, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

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

On April 30, 2010, defendants Muscletech Research and Development, Inc., Iovate Health Sciences U.S.A., Inc., Iovate Health Sciences Research, Inc., Iovate Health Sciences International, Inc. Iovate HC 2005 Formulations Ltd., and Wal-Mart Stores East, L.P. ("Defendants") filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative Fed. R. Civ. P. 9(b).*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 July 2, 2010. On June 18, 2010 (in 10cv673) and June 21, 2010 (in 09md2087), attorneys for plaintiffs Deborah Rutherford, Dana Crawford, Michael Maggard, and Travis D. Horton ("Plaintiffs") filed a Motion for Leave to Amend Complaint.*fn3 On June 22, 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 in principle oppose Plaintiffs' Motion for Leave to Amend and therefore do not have any objection to Plaintiffs filing an amended complaint at this time," 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. Plaintiffs' Motion for Leave to Amend is GRANTED.

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

3. The two pending Motions to Dismiss [09md2087 - Docket Entries 189 and 190] are DENIED as moot since the original complaint will no longer be the operative complaint once Plaintiffs file an amended complaint in this case.

4. Defendants' request for a stay of the briefing schedule relating to their motions to dismiss is GRANTED.

5. Plaintiffs shall file their amended complaint on or before July 23, 2010.

IT IS SO ORDERED.


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