Wheeler v. The Topps Company, Inc.
| Belinda Wheeler |
| The Topps Company, Inc. |
| 1:2022cv02264 |
| March 18, 2022 |
| US District Court for the Southern District of New York |
| Lorna G Schofield |
| Other Fraud |
| 28 U.S.C. § 1332 fr Diversity-Fraud |
| Plaintiff |
Docket Report
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This docket was last retrieved on January 25, 2023. A more recent docket listing may be available from PACER.
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Filing 33
CLERK'S JUDGMENT re: #32 Memorandum & Opinion in favor of The Topps Company, Inc. against Belinda Wheeler. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated January 25, 2023, under Federal Rule of Civil Procedure 15(a), a court "should freely give leave" to amend a pleading "when justice so requires," but leave to amend is properly denied if to do so would be futile. In response to the original complaint, Defendant filed a pre-motion letter describing the legal arguments, supported by case law, as to why the GBL, breach of warranty, fraud and unjust enrichment claims should be dismissed. Those arguments included that the GBL claims lack a New York nexus, that the breach of warranty claims were not preceded by pre-suit notice, that the MMWA claim falls with the state law breach of warranty claims, that the fraud claim fails to plead the requisite intent, and that the unjust enrichment claim is duplicative. In response to Defendant's letter, Plaintiff chose to file an amended complaint, the FAC. Despite being on notice from Defendant's letter, the FAC did not correct the deficiencies, which are the same reasons that the FAC is now dismissed. The Court accordingly finds that any amendment would be futile and has GRANTED Defendant's motion to dismiss with prejudice; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 1/25/2023) (Attachments: #1 Right to Appeal) (km)
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Filing 32
OPINION AND ORDER re: #26 MOTION to Dismiss Plaintiff's First Amended Class Action Complaint filed by The Topps Company, Inc. Under Federal Rule of Civil Procedure 15(a), a court "should freely give leave" to amend a pleading "when justice so requires," but leave to amend is properly denied if to do so would be futile. In response to the original complaint, Defendant filed a pre-motion letter describing the legal arguments, supported by case law, as to why the GBL, breach of warranty, fraud and unjust enrichment claims should be dismissed. Those arguments included that the GBL claims lack a New York nexus, that the breach of warranty claims were not preceded by pre-suit notice, that the MMWA claim falls with the state law breach of warranty claims, that the fraud claim fails to plead the requisite intent, and that the unjust enrichment claim is duplicative. In response to Defendant's letter, Plaintiff chose to file an amended complaint, the FAC. Despite being on notice from Defendants letter, the FAC did not correct the deficiencies listed above, which are the same reasons that the FAC is now dismissed. The Court accordingly finds that any amendment would be futile and GRANTS Defendants motion to dismiss with prejudice. The Clerk of Court is respectfully directed to close the motion at Docket No. 26 and to close the case. (Signed by Judge Lorna G. Schofield on 1/25/2023) (mml) Transmission to Orders and Judgments Clerk for processing.
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Filing 31
LETTER addressed to Judge Lorna G. Schofield from Paul R. DeFilippo dated November 22, 2022 re: Supplemental Authority in Further Support of Motion to Dismiss the Amended Complaint (ECF No. 26). Document filed by The Topps Company, Inc...(DeFilippo, Paul)
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Filing 30
ORDER: It is hereby ORDERED that the November 23, 2022, conference is ADJOURNED sine die. (Signed by Judge Lorna G. Schofield on 11/21/2022) (ama)
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Filing 29
REPLY MEMORANDUM OF LAW in Support re: #26 MOTION to Dismiss Plaintiff's First Amended Class Action Complaint. . Document filed by The Topps Company, Inc...(DeFilippo, Paul)
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Filing 28
MEMORANDUM OF LAW in Opposition re: #26 MOTION to Dismiss Plaintiff's First Amended Class Action Complaint. . Document filed by Belinda Wheeler..(Hillebrand, Theodore)
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Filing 27
MEMORANDUM OF LAW in Support re: #26 MOTION to Dismiss Plaintiff's First Amended Class Action Complaint. . Document filed by The Topps Company, Inc.. (Attachments: #1 Exhibit 1).(DeFilippo, Paul)
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Filing 26
MOTION to Dismiss Plaintiff's First Amended Class Action Complaint. Document filed by The Topps Company, Inc.. Responses due by 7/13/2022.(DeFilippo, Paul)
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Set/Reset Deadlines: The Topps Company, Inc. answer due 6/22/2022. Motions due by 6/22/2022. Responses due by 7/13/2022 Replies due by 7/22/2022. (mml)
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Filing 25
ORDER terminating #21 LETTER MOTION for Conference Defendant's pre-motion letter in advance of motion to dismiss the amended complaint addressed to Judge Lorna G. Schofield from Paul R. DeFilippo dated May 23, 2022. It is hereby ORDERED that, by June 22, 2022, Defendant shall answer the operative complaint or file the Motion, which shall be briefed according to the following schedule: By June 22, 2022, Defendant shall file the Motion with a memorandum of law not to exceed 25 pages. By July 13, 2022, Plaintiff shall file any opposition, not to exceed 25 pages. By July 22, 2022, Defendant shall file any reply in support of the Motion, not to exceed 10 pages. The parties shall comply with this Court's Individual Rules in filing the Motion and supporting papers. It is further ORDERED that, for substantially the reasons stated in Defendant's letter motion, discovery is STAYED pending a decision on the motion to dismiss. The Clerk of Court is respectfully directed to close the motion at Dkt. No. 21. (Signed by Judge Lorna G. Schofield on 6/1/2022) (mml)
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Filing 24
LETTER RESPONSE in Opposition to Motion addressed to Judge Lorna G. Schofield from Belinda Wheeler dated 05/31/2022 re: #21 LETTER MOTION for Conference Defendant's pre-motion letter in advance of motion to dismiss the amended complaint addressed to Judge Lorna G. Schofield from Paul R. DeFilippo dated May 23, 2022. . Document filed by Belinda Wheeler..(Hillebrand, Theodore)
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Filing 23
NOTICE OF APPEARANCE by Theodore Hillebrand on behalf of Belinda Wheeler..(Hillebrand, Theodore)
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Filing 22
ORDER with respect to #21 LETTER MOTION for Conference Defendant's pre-motion letter in advance of motion to dismiss the amended complaint addressed to Judge Lorna G. Schofield from Paul R. DeFilippo dated May 23, 2022. By May 31, 2022, Plaintiff shall file a response, not to exceed three pages. So Ordered. (Signed by Judge Lorna G. Schofield on 5/24/2022) (mml)
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Set/Reset Deadlines: Responses due by 5/31/2022. (mml)
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Filing 21
LETTER MOTION for Conference Defendant's pre-motion letter in advance of motion to dismiss the amended complaint addressed to Judge Lorna G. Schofield from Paul R. DeFilippo dated May 23, 2022. Document filed by The Topps Company, Inc...(DeFilippo, Paul)
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Filing 20
CIVIL CASE MANAGEMENT PLAN AND SCHEDULING ORDER: The parties do not consent to conducting all further proceedings before a United States Magistrate Judge, including motions and trial. Initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1) shall be completed no later than 14 days from the date of the Court's entry of a case management plan. The Court does not ordinarily stay discovery pending a decision on a motion to dismiss, absent compelling circumstances. Accordingly, the motion to stay discovery is DENIED. The deadlines in paragraphs 8(b) through 8(f) may be set by the written consent of all parties so long as all fact discovery is completed by September 22, 2022. By 10/21/2022, the parties shall meet and confer on a schedule for expert disclosures, including reports, production of underlying documents and depositions, provided that (i)expert report(s) of the party with the burden of proof shall be due before those of the opposing party's expert(s); and (ii) all expert discovery shall be completed by the date set forth in paragraph 9(b). This case is to be tried to a jury. Counsel for the parties have conferred, and their present best estimate of the length of trial is 3-7 days. By 7/25/2-22, the parties shall submit a joint status letter, as outlined in Individual Rule IV.A.2. By 10/6/22, the parties shall submit a joint status letter, as outlined in Individual Rule IV.A.2 and, in the event that they have not already been referred for settlement discussions, shall also advise the Court whether or not they request a referral for settlement discussions as provided in Paragraph 4(c) above. On 11/23/2022 at 4:10 p.m., a pre-motion conference will be held for any anticipated motions for summary judgment and any other dispositive motions. The motion will be discussed at the conference. To join the conference, the parties shall call (888) 363-4749 and use Access Code 558-3333. The Clerk of Court is directed to enter the dates under paragraphs 5, 6, 8(a), 9(b)-(c) and 13(a)-(c) into the Court's calendar. Joinder of Parties due by 7/29/2022. Deposition due by 10/21/2022. Fact Discovery due by 9/22/2022. Expert Discovery due by 11/7/2022. Telephone Conference set for 11/23/2022 at 04:10 PM before Judge Lorna G. Schofield. (Signed by Judge Lorna G. Schofield on 5/20/2022) (ate)
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Filing 19
ORDER: It is hereby ORDERED that the May 25, 2022, initial pretrial conference is CANCELLED. If the parties believe that a conference would nevertheless be useful, they should inform the Court immediately so the conference can be reinstated. The case management plan and scheduling order will issue in a separate order. (Signed by Judge Lorna G. Schofield on 5/20/2022) (ate)
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Filing 18
JOINT LETTER addressed to Judge Lorna G. Schofield dated May 18, 2022 Document filed by The Topps Company, Inc.. (Attachments: #1 Exhibit [Proposed] Civil Case Management Plan).(DeFilippo, Paul)
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Filing 17
ORDER: granting #15 Letter Motion to Adjourn Conference. Application GRANTED. The conference scheduled for May 18, 2022, is ADJOURNED to May 25, 2022, at 4:10 p.m. By May 18, 2022, the parties shall file a joint letter and proposed case management plan. (See Dkt. No. 5.) The Clerk of Court is respectfully directed to close the motions at Dkt. Nos. 12 and 15. Initial Conference set for 5/25/2022 at 04:10 PM before Judge Lorna G. Schofield. (Signed by Judge Lorna G. Schofield on 5/10/2022) (ama)
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Filing 16
FIRST AMENDED COMPLAINT amending #1 Complaint against The Topps Company, Inc. with JURY DEMAND.Document filed by Belinda Wheeler. Related document: #1 Complaint..(Sheehan, Spencer)
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Filing 15
JOINT LETTER MOTION to Adjourn Conference and Extend the Deadline to File Joint Pre-Conference Letter addressed to Judge Lorna G. Schofield from Paul R. DeFilippo & Spencer Sheehan dated May 10, 2022. Document filed by The Topps Company, Inc...(DeFilippo, Paul)
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Filing 14
LETTER RESPONSE in Opposition to Motion addressed to Judge Lorna G. Schofield from Spencer Sheehan dated April 25, 2022 re: #12 LETTER MOTION for Conference - Defendant's pre-motion letter in advance of motion to dismiss addressed to Judge Lorna G. Schofield from Paul R. DeFilippo dated April 19, 2022. . Document filed by Belinda Wheeler..(Sheehan, Spencer)
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Filing 13
ORDER with respect to #12 LETTER MOTION for Conference - Defendant's pre-motion letter in advance of motion to dismiss addressed to Judge Lorna G. Schofield from Paul R. DeFilippo dated April 19, 2022. By April 25, 2022, Plaintiff shall file a response, not to exceed three pages. So Ordered. (Signed by Judge Lorna G. Schofield on 4/20/2022) (mml)
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Set/Reset Deadlines: Responses due by 4/25/2022. (mml)
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Filing 12
LETTER MOTION for Conference - Defendant's pre-motion letter in advance of motion to dismiss addressed to Judge Lorna G. Schofield from Paul R. DeFilippo dated April 19, 2022. Document filed by The Topps Company, Inc...(DeFilippo, Paul)
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Filing 11
RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate Parent Topps Intermediate Holdco, Inc., Other Affiliate Fanatics Collectibles AC, Inc., Other Affiliate Fanatics SPV, LLC, Other Affiliate Fanatics Collectibles Intermediate Holdco, Inc., Other Affiliate Fanatics Collectibles Holdco, Inc., Other Affiliate Fanatics Collectibles Topco, Inc., Other Affiliate Fanatics Global Holdco, LLC, Other Affiliate Fanatics Holdings, Inc. for The Topps Company, Inc.. Document filed by The Topps Company, Inc...(DeFilippo, Paul)
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Filing 10
NOTICE OF APPEARANCE by Scott C Ferrier on behalf of The Topps Company, Inc...(Ferrier, Scott)
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Filing 9
NOTICE OF APPEARANCE by Maxwell George Dillan on behalf of The Topps Company, Inc...(Dillan, Maxwell)
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Filing 8
NOTICE OF APPEARANCE by Ryan Anthony Kane on behalf of The Topps Company, Inc...(Kane, Ryan)
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Filing 7
NOTICE OF APPEARANCE by Ronald Judah Aranoff on behalf of The Topps Company, Inc...(Aranoff, Ronald)
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Filing 6
NOTICE OF APPEARANCE by Paul DeFilippo on behalf of The Topps Company, Inc...(DeFilippo, Paul)
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Filing 5
ORDER: This case has been assigned to me for all purposes. It is hereby ORDERED that a telephonic conference will be held on May 18, 2022 at 4:10 p.m. The parties shall call (888) 363-4749 and enter the access code 558-3333 and further set forth in this Order. Initial Conference set for 5/18/2022 at 04:10 PM before Judge Lorna G. Schofield. (Signed by Judge Lorna G. Schofield on 4/6/2022) (rro)
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Filing 4
ELECTRONIC SUMMONS ISSUED as to The Topps Company, Inc.. (vf)
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CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Lorna G. Schofield. Please download and review the Individual Practices of the assigned District Judge, located at #https://nysd.uscourts.gov/judges/district-judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #https://nysd.uscourts.gov/rules/ecf-related-instructions..(vf)
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Magistrate Judge Gabriel W. Gorenstein is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (vf)
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Case Designated ECF. (vf)
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Filing 3
REQUEST FOR ISSUANCE OF SUMMONS as to The Topps Company, Inc., re: #1 Complaint. Document filed by Belinda Wheeler..(Sheehan, Spencer)
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Filing 2
CIVIL COVER SHEET filed..(Sheehan, Spencer)
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Filing 1
COMPLAINT against The Topps Company, Inc.. (Filing Fee $ 402.00, Receipt Number ANYSDC-25885609)Document filed by Belinda Wheeler..(Sheehan, Spencer)
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