Porter v. NBTY, Inc. et al

MOTION

N.D. Ill.April 19, 2016

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION RYAN PORTER, individually and on behalf ) of all others similarly situated, ) ) Plaintiff, ) Case No. 15-cv-11459 ) v. ) Hon. Manish S. Shah ) NBTY, INC., UNITED STATES NUTRITION, ) Hon. Young B. Kim INC., HEALTHWATCHERS (DE), INC., and ) MET-RX NUTRITION, INC., ) ) Defendants. ) PLAINTIFF’S UNCONTESTED MOTION FOR LEAVE TO AMEND COMPLAINT Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, Plaintiff Ryan Porter (“Plaintiff”), by his counsel, Siprut PC and Barbat, Mansour & Suciu PLLC, hereby requests leave of Court to amend his First Amended Class Action Complaint. In support of this motion (“Motion”), Plaintiff states: 1. On December 18, 2015, Plaintiff filed a complaint against Defendants NBTY, Inc., United States Nutrition, Inc., Healthwatchers (DE), Inc., and Met-Rx Nutrition, Inc. (collectively, the “Defendants”), alleging that Defendants misrepresent the protein content, percent of the recommended daily value of protein, and quality of protein in their Body Fortress Super Advanced Whey Protein, Body Fortress Super Advanced Whey Isolate, and Met-Rx MyoSynthesis Whey protein supplements. (Dkt. No. 1.) 2. On February 12, 2016, Defendants filed an Agreed Motion For Additional Time Within Which To Answer Or Otherwise Plead And Motion To Strike Initial Status Conference, requesting that Defendants have until March 28, 2016, to answer or otherwise plead in response to Case: 1:15-cv-11459 Document #: 25 Filed: 04/19/16 Page 1 of 5 PageID #:149 - 2 - Plaintiff’s complaint. (Dkt. No. 12.) That motion was subsequently granted by this Court on February 16, 2016. (Dkt. No. 15.) 3. On March 22, 2016, Plaintiff filed his First Amended Class Action Complaint (the “Complaint”), including additional allegations in support of his consumer fraud claims. (Dkt. No. 18.) 4. On April 5, 2016, Defendants filed a Motion To Dismiss For Failure to State A Claim and Memorandum In Support Of Their Motion To Dismiss (collectively, the “Motion To Dismiss”). (Dkt. Nos. 19 and 20.) 5. On April 8, 2016, this Court held a status hearing and entered a briefing schedule, which set a deadline of May 6, 2016, for Plaintiff’s response to Defendants’ Motion To Dismiss. (Dkt. No. 24.) 6. During the course of this litigation, counsel for Plaintiff became aware that a similar case had been filed in the Eastern District of New York, styled Kwon v. NBTY, Inc., et al., Case No. 1:15-cv-3866, another putative class action which: (a) named three of the same defendants in the Porter case; (b) involved one of the same products in the Porter case; and (c) asserted substantially similar consumer fraud and other claims. (Dkt. No. 1.) 7. The defendants in the Kwon filed a motion to dismiss. (Dkt. Nos. 20, 22, and 23.) As of early April 2016, the parties had not yet received a ruling from the Eastern District of New York on defendants’ motion to dismiss. 8. For judicial efficiency and to avoid the possibility of inconsistent rulings by two different District Courts, on April 13, 2016, counsel for plaintiff in the Kwon case filed a Notice Of Voluntary Dismissal Without Prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Dkt. No. 29.) Case: 1:15-cv-11459 Document #: 25 Filed: 04/19/16 Page 2 of 5 PageID #:150 - 3 - 9. Plaintiff’s counsel wishes to: (a) add Kwon as a plaintiff in this case to represent a subclass of New York consumers; and (b) add consumer fraud claims under New York’s General Business Laws. 10. Plaintiff seeks to address those issues by amending his Complaint, rather than forcing the Court and Defendants’ counsel to expend the resources necessary to fully brief and resolve Defendants’ Motion To Dismiss. If Plaintiff were to wait until the Court rules on the pending Motion To Dismiss, and then seeks leave to amend his Complaint, an additional round of briefing and motion practice would be necessary. 11. On April 18, 2016, Michael L. Silverman, one of the attorneys for Plaintiff, contacted William A. Delgado, one of the attorneys for Defendants, to meet and confer regarding this Motion and to determine whether there was an objection to this Motion. Counsel for Defendants do not have any objections to this Motion. 12. Under Federal Rule of Civil Procedure 15(a)(2), leave to amend should be “freely give[n] . . . .” Fed. R. Civ. P. 15(a)(2). 13. No prejudice to any party, including Defendants, will result from granting the requested relief. This Motion is not brought in order to delay these proceedings or for any other improper purpose. 14. Accordingly, Plaintiff hereby seeks leave to prepare and file his second amended complaint on or before May 3, 2016. 15. Based on the parties’ discussions during their meet-and-confer, Defendants anticipate filing a motion to dismiss Plaintiff’s second amended complaint. The parties propose a briefing schedule as follows: (a) Defendants shall respond to Plaintiff’s second amended complaint on or before May 31, 2016; (b) Plaintiff shall file a response to Defendants’ motion to dismiss on Case: 1:15-cv-11459 Document #: 25 Filed: 04/19/16 Page 3 of 5 PageID #:151 - 4 - or before June 28, 2016; and (c) Defendants shall file a reply on Defendants’ motion to dismiss on or before July 19, 2016. WHEREFORE, Plaintiff respectfully requests that the Court order: A. That Plaintiff’s Uncontested Motion For Leave To Amend Complaint is GRANTED; B. That Plaintiff is given until and including May 3, 2016, to file his second amended complaint; C. That Defendants are given until and including May 31, 2016, to respond to Plaintiff’s second amended complaint; D. That Plaintiff is given until and including June 28, 2016, to file a response to Defendants’ motion to dismiss; E. That Defendants are given until and including July 19, 2016, to file a reply on Defendants’ motion to dismiss; and F. Such other relief as the Court deems appropriate. Dated: April 19, 2016 By: /s/ Michael L. Silverman Joseph J. Siprut jsiprut@siprut.com Richard L. Miller II rmiller@siprut.com Michael L. Silverman msilverman@siprut.com SIPRUT PC 17 N. State Street Suite 1600 Chicago, Illinois 60602 Phone: 312.236.0000 Fax: 312.878.1342 Nick Suciu III nicksiciu@bmslawyers.com BARBAT, MANSOUR & SUCIU PLLC 434 West Alexandrine Suite 101 Detroit, Michigan 48201 Phone: 313.303.3472 Case: 1:15-cv-11459 Document #: 25 Filed: 04/19/16 Page 4 of 5 PageID #:152 CERTIFICATE OF SERVICE The undersigned, an attorney, hereby certifies that a true and correct copy of the foregoing Plaintiff’s Uncontested Motion For Leave To Amend Complaint was filed electronically with the Clerk of the Court using the CM/ECF system on this 19th day of April 2016 and served electronically on all counsel of record. /s/ Michael L. Silverman 4835-2162-4368, v. 1 Case: 1:15-cv-11459 Document #: 25 Filed: 04/19/16 Page 5 of 5 PageID #:153