United States District Court, M.D. Louisiana
K&F RESTAURANT HOLDINGS, LTD., ET AL.
DONALD J. ROUSE, JR., ET AL.
NOTICE AND ORDER
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.
the court is a Motion for Extension of Time in Which to File
Responsive Pleading to Amended Complaint (the “Motion
for Extension”) and a Motion to Expedite Consideration of
Motion for Extension of Time in Which to File Responsive
Pleading to Amended Complaint (the “Motion to
Expedite”) filed by defendants, Donald J. Rouse, Jr.;
Donald J. Rouse, Sr.; Thomas B. Rouse; Allison Rouse Royster;
and Rouse's Enterprises, LLC (“Rouse's”)
about April 13, 2016, plaintiffs, K&F Restaurant
Holdings, Ltd. d/b/a Izzo's Illegal Burrito
(“Izzo's”); K&F Restaurant Operations,
LLC; G&O Pizza Holdings, Ltd. d/b/a LIT Pizza; G&O
Restaurant Operations, LLC; Osvaldo Fernandez; and A. Gary
Kovacs (“Plaintiffs”) filed a Verified Petition
for Damages (the “Original Petition”) against
Defendants in state court.Defendants subsequently removed this
matter to federal district court on the basis of federal
question subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331. Thereafter, Defendants filed a Partial
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(6) (the “Motion to Dismiss”) seeking dismissal
of Plaintiffs' claims for violation of the Louisiana
Unfair Trade Practices Act and Consumer Protection Law
(“LUTPA”) (Count I), violation of Louisiana Civil
Code Article 2315 (Count II), tortious interference with a
contract (Count II A), product defamation (Count II B), civil
conversion (Count II C), trademark infringement under
Louisiana law (Count III), and conspiracy (Count IV). On
February 2, 2017, the court granted in part and denied in
part Defendants' Motion to Dismiss. Accordingly,
pursuant to Fed.R.Civ.P. 12(a)(4)(A), Defendants'
responsive pleading to the Original Petition were due on
February 16, 2017. (“Unless the court sets a different
time, serving a motion under this rule alters these periods
as follows: (A) if the court denies the motion…the
responsive pleading must be served within 14 days after
notice of the court's action.”). However, per
Defendants' Motion for Extension, “because
Plaintiffs' counsel indicated to Defendants' counsel
that Plaintiffs would be filing an amended complaint, the
parties agreed that Defendants would not file an answer until
Plaintiffs filed the amended complaint.”
March 16, 2017, Plaintiffs' filed a First Amended
Complaint (the “Amended
Complaint”). However, the Amended Complaint is not
comprehensive. Rather than incorporating all live allegations
set forth in one comprehensive pleading, the Amended
Complaint adopts by reference and renews “all
statements, causes of action, claims, and allegations set
forth in the original Verified Petition for Damages as if
copied herein in extenso.” Such
incorporation by reference is inconsistent with the
court's February 2, 2017 ruling on the Motion to Dismiss
and introduces an element of uncertainty regarding the
Plaintiffs' live allegations.
Defendants' Motion for Extension, Plaintiffs' counsel
opposes an (additional) extension of time within which to
respond to the Original Petition, but does not oppose an
extension of time within which to respond to the Amended
Complaint. Defendants explain that they “are
unaccustomed to responding to an original complaint and
amended complaint separately” and therefore
“request an extension of time within which to file all
responsive pleadings up to and including April 11,
2017.” The undersigned finds that filing
separate responsive pleadings to the Original Petition and
Amended Complaint would be unwieldly, and that instead
Plaintiffs should be required to submit one comprehensive
complaint to which Defendants are required to respond.
IT IS HEREBY ORDERED that Plaintiffs'
First Amended Complaint (R. Doc. 46) be
STRICKEN from the record.
IS FURTHER ORDERED that Plaintiffs file a
comprehensive amended complaint (i.e., a pleading
which includes all of Plaintiffs' active allegations and
causes of action and which does not incorporate by reference,
refer to, or otherwise depend upon a previous pleading).
Plaintiffs' comprehensive amended complaint shall not
include any allegations or claims which have been previously
dismissed by this court with prejudice. Plaintiffs shall have
seven (7) days from the date of this Notice and Order to file
the comprehensive amended complaint without further leave of
IS FURTHER ORDERED that Defendants shall have
twenty-one (21) days from the filing of the comprehensive
amended complaint to file responsive pleadings.
IS FURTHER ORDERED that in light of the above,
Defendants' Motion for Extension of Time in Which to File
Responsive Pleading to Amended Complaint and a Motion
to Expedite Consideration of Motion for Extension of Time in
Which to File Responsive Pleading to Amended
Complaint are TERMINATED AS MOOT.
 R. Doc. 49.
 R. Doc. 50.
 R. Doc. 1-1.