Opinion
Case No. 6:11-cv-1280-Orl-31GJK.
September 9, 2011
ORDER
This matter comes before the Court on the Motion to Dismiss Count II (Doc. 8) filed by the Defendant, Tri City Electrical Contractors, Inc., and the response (Doc. 11) filed by the Plaintiff, Federal Insurance Company ("Federal Insurance"). Count II of the Complaint, though titled "Breach of Contract," appears to have been intended to set forth a claim for breach of an implied warranty. (Doc. 1 at 3). In response to the instant motion, Federal Insurance seeks leave to file an amended complaint to assert a claim for breach of an express warranty rather than one for breach of an implied warranty. (Doc. 13 at 2-3).
The Federal Rules of Civil Procedure permit a party to amend its complaint once as a matter of course within 21 days of service of a motion under Rule 12(b). Fed.R.Civ.P. 15(a)(1)(B). The instant Rule 12(b)(6) motion was filed less than 21 days ago; accordingly, leave of court is not required to file an amended complaint. Nevertheless, as such leave has been requested, the Court will grant it.
In consideration of the foregoing, it is hereby
ORDERED that the Motion to Dismiss Count II (Doc. 8) is DENIED AS MOOT. The Plaintiff's response, insofar as it requests leave to file an amended complaint, is GRANTED, and the Plaintiff shall file its amended pleading on or before Wednesday, September 14, 2011.
DONE and ORDERED in Chambers, Orlando, Florida.