UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 22, 2010
IN RE HYDROXYCUT MARKETING AND SALES PRACTICES LITIGATION
JONATHAN BOOSE, PLAINTIFF,
IOVATE HEALTH SCIENCES, INC., AND IOVATE HEALTH SCIENCES USA, INC., DEFENDANTS.
The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
MOTION TO DEEM PLAINTIFF'S AMENDED AND RESTATED DENYING AS MOOT ORDER GRANTING JOINT COMPLAINT TIMELY FILED AND DEFENDANTS' MOTION TO DISMISS
The original complaint in this action was filed in the Eastern District of Louisiana on April 16, 2010. Thereafter, the case was transferred to the Southern District of California and became part of the pending Multidistrict Litigation ("MDL") entitled In re Hydroxycut Marketing and Sales Practices Litigation (09md2087). Upon transfer, the case was assigned a separate civil case number (10cv1230).
On June 11, 2010, defendants Iovate Health Sciences, Inc. and Iovate Health Sciences U.S.A., Inc. timely filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 9(b).*fn1
On July 15, 2010, attorneys for plaintiff Jonathan Boose filed an Amended and Restated Complaint without leave of court. The parties have now stipulated and agreed that the Plaintiff shall be deemed to have had leave of court and to have timely filed his amended complaint. In furtherance of their agreement, the parties filed a Joint Motion to Deem Plaintiff's Amended and Restated Complaint Timely Filed ("Joint Motion).*fn2
Upon review of the papers submitted by the parties, the Court hereby orders as follows:
1. The Joint Motion is GRANTED.
2. The Plaintiff shall be deemed to have had leave of court to amend his complaint.
3. The Amended and Restated Complaint filed by Plaintiff Jonathan Boose on July 15, 2010 shall be deemed timely filed.
4. The deadline for Defendants to move, answer or otherwise respond to the Amended and Restated Complaint shall be extended up to and including August 6, 2010.
5. It is further ordered that the pending Motion to Dismiss [09md2087 - Docket Entry 243] is DENIED as moot since the original complaint will no longer be the operative complaint and Plaintiff has filed his Amended and Restated Complaint in this case.
IT IS SO ORDERED.