Opinion
19 Civ. 10746 (PAE) (SN)
06-13-2022
YONY SOSA, Plaintiff, v. RECREATIONAL EQUIPMENT, INC. Defendant.
ORDER
PAUL A. ENGELMAYER, DISTRICT JUDGE
On February 20, 2020, defendant Recreational Equipment, Inc. (“REI”) moved to dismiss plaintiff Yony Sosa's initial complaint in this case. Dkt. 14. On February 21, 2020, the Court referred the motion to the Honorable Sarah Netbum, United States Magistrate Judge, for a report and recommendation. Dkt. 16. On February 28, 2020, Sosa filed an amended complaint. Dkt. 17. On March 2, 2020, Judge Netbum denied REI's first motion to dismiss as moot, in light of the amended complaint. Dkt. 20. On April 2, 2020, REI moved to dismiss Sosa's amended complaint. Dkt. 21. On June 24, 2020, the Court administratively terminated REI's motion dismiss, without prejudice to its ability to refile its motion, on the ground that motions raising identical arguments were then-pending on appeal before the Second Circuit. Dkt. 26. The Court also stayed all proceedings in the case pending a decision from the Second Circuit. Id.
On June 8, 2022, the parties filed a joint letter alerting the Court that the Second Circuit has issued a decision in Calcano, et al. v. Swarovski North America Ltd., et al., No. 20-1552. Dkt. 27. In light of the decision, plaintiff seeks leave to file a Second Amended Complaint, which the defendant opposes on the ground that it would be futile in light of Calcano, and in the alternative to renew its motion to dismiss. Id.
The Court grants plaintiffs request to file a Second Amended Complaint, which shall be filed by July 13, 2022, If plaintiff does amend, by August 3, 2022, defendant shall: (1) file an answer; (2) file a new motion to dismiss; or (3) submit a letter to the Court, copying plaintiff, stating that it relies on the previously filed motion to dismiss.
If defendant files a new motion to dismiss or relies on their previous motion, plaintiffs opposition will be due 14 days thereafter, and defendant's reply, if any, will be due seven days after that.
It is further ORDERED that if no amended complaint is filed, plaintiff shall serve any opposition to the motion to dismiss by July 13, 2022. Defendant's reply, if any, shall be served by July 27, 2022.
The Court will determine later, after receipt of plaintiffs anticipated brief opposing a motion to dismiss the current or amended complaint, whether to schedule oral argument.
SO ORDERED.