Airport Mart, Inc. v. Dunkin' Donuts Franchising LLC

Justia Dockets & Filings Second Circuit New York Southern District Airport Mart, Inc. v. Dunkin' Donuts Franchising LLC

Airport Mart, Inc. v. Dunkin' Donuts Franchising LLC

Plaintiff:	Airport Mart, Inc.
Defendant:	Dunkin' Donuts Franchising LLC
Case Number:	7:2018cv00170
Filed:	January 9, 2018
Court:	US District Court for the Southern District of New York
Office:	White Plains Office
County:	Westchester
Presiding Judge:	Kenneth M. Karas
Nature of Suit:	Franchise
Cause of Action:	28 U.S.C. § 1332
Jury Demanded By:	Plaintiff

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Date Filed	Document Text
September 16, 2019	Filing 52 OPINION AND ORDER: For the foregoing reasons, the Court grants Defendant's Motion To Strike Plaintiff's Demand for a Jury Trial and Request for Lost Profits and Punitive Damages, grants Defendant's Motion To Dismiss with respect to Plaintiff's claim under NYGBL § 349, and grants Defendant's Motion To Dismiss with respect to Plaintiff's fraud in the inducement/intentional misrepresentation claim, except for Plaintiff's allegation that Defendant mi srepresented that Plaintiff would bake and sell goods on its own premises with the equipment it was required to purchase to operate the Store. The claims that are dismissed are dismissed with prejudice, as Plaintiff has already twice amended, incl uding in response to Defendant's pre-motion letters. Justice v. McGovern, No. 11-CV-5076, 2013 WL 1809634, at *3 (E.D.N.Y. Apr. 29, 2013) ("Although when a motion to dismiss is granted, the usual practice is to grant leave to amend the c omplaint, when the plaintiff is put on notice of the deficiencies in his complaint and fails to correct them in the amended complaint[,] dismissal with prejudice is proper" ( citation, some alterations, and quotation marks omitted)); Tyler v. Liz Claiborne, Inc., 814 F. Supp. 2d 323, 344 (S.D.N.Y. 2011) ("[A]s plaintiff has already amended his complaint twice, dismissal with prejudice is appropriate at this stage in the litigation." (collecting cases)). Because discovery is n eeded to ascertain the timeliness of Plaintiffs claims, within 10 days of the date of this Opinion & Order, the Parties are to submit a proposed discovery schedule for limited discovery. The Clerk of Court is respectfully directed to terminate the pending Motions. (See Dkt. Nos. 36, 38.) (Signed by Judge Kenneth M. Karas on 9/16/2019) (jca)

Date Filed

Document Text

September 16, 2019

Filing 52 OPINION AND ORDER: For the foregoing reasons, the Court grants Defendant's Motion To Strike Plaintiff's Demand for a Jury Trial and Request for Lost Profits and Punitive Damages, grants Defendant's Motion To Dismiss with respect to Plaintiff's claim under NYGBL § 349, and grants Defendant's Motion To Dismiss with respect to Plaintiff's fraud in the inducement/intentional misrepresentation claim, except for Plaintiff's allegation that Defendant mi srepresented that Plaintiff would bake and sell goods on its own premises with the equipment it was required to purchase to operate the Store. The claims that are dismissed are dismissed with prejudice, as Plaintiff has already twice amended, incl uding in response to Defendant's pre-motion letters. Justice v. McGovern, No. 11-CV-5076, 2013 WL 1809634, at *3 (E.D.N.Y. Apr. 29, 2013) ("Although when a motion to dismiss is granted, the usual practice is to grant leave to amend the c omplaint, when the plaintiff is put on notice of the deficiencies in his complaint and fails to correct them in the amended complaint[,] dismissal with prejudice is proper" ( citation, some alterations, and quotation marks omitted)); Tyler v. Liz Claiborne, Inc., 814 F. Supp. 2d 323, 344 (S.D.N.Y. 2011) ("[A]s plaintiff has already amended his complaint twice, dismissal with prejudice is appropriate at this stage in the litigation." (collecting cases)). Because discovery is n eeded to ascertain the timeliness of Plaintiffs claims, within 10 days of the date of this Opinion & Order, the Parties are to submit a proposed discovery schedule for limited discovery. The Clerk of Court is respectfully directed to terminate the pending Motions. (See Dkt. Nos. 36, 38.) (Signed by Judge Kenneth M. Karas on 9/16/2019) (jca)

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Plaintiff: Airport Mart, Inc.
Represented By:	Yenisey Rodriguez-McCloskey
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Defendant: Dunkin' Donuts Franchising LLC
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