United States District Court, W.D. Louisiana, Lake Charles Division
BOBBY'S COUNTRY COOKIN', LLC, ET AL.
WAITR HOLDINGS, INC.
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a Motion to Strike filed by defendant Waitr
Holdings, Inc. (hereafter “Waitr”). Doc. 33.
Through this motion Waitr asks us to strike the First Amended
Class Action Complaint [doc. 30] from the record. The motion
is opposed by plaintiffs Bobby's Country Cookin',
LLC, Casa Manana, Inc., Que Pasa Taqueria, LLC, and Casa Tu
Sulphur, LLC (hereinafter collectively referred to as
reasons stated below, the Motion to Strike will be
operates an online food order and delivery platform. Doc. 15,
att. 1, p. 5. It contracts with “Restaurant
Partners” to be part of its network of restaurants and
posts their menus so restaurant customers can use a phone or
computer to order food. Id. Waitr drivers pick up
the order from the Restaurant Partners and deliver it to the
customer. Id. In exchange for this service, Waitr
collects, inter alia, a fixed percentage of the
revenue from each order. See Id. at att. 2. In July
2017, Bobby's Country Cookin' LLC (hereafter
“Bobby's”) entered into an agreement with
Waitr to become one of its Restaurant Partners. Id.;
Doc. 1, p. 4. Under the terms of its initial agreement,
Bobby's agreed to pay Waitr a ten percent (10%) service
fee for each order Bobby's costumers placed through the
Waitr platform. Bobby's alleges that, in 2018, Waitr
violated the express terms of this agreement by
“unilaterally” increasing the service fee to
fifteen percent (15%). Doc. 1, p. 1.
April 30, 2019, Bobby's filed a Class Action Complaint
against Waitr alleging breach of contract, violation of the
duty of good faith and fair dealing, and unjust enrichment.
Doc. 1. On July 22, 2019, Waitr filed a Motion to Dismiss
pursuant to Rule 12(b)(6) alleging Bobby's failed to
state a claim against it. Doc. 15. Bobby's did not file
an opposition brief, however on August 12, 2019, plaintiffs
filed a First Amended Class Action Complaint. Doc. 30. Waitr
filed the motion to strike currently before the court arguing
plaintiffs were required to obtain leave of the court before
filing the First Amended Class Action Complaint. Doc. 33.
argues the First Amended Class Action Complaint should be
stricken because it is a supplemental rather than an
amended complaint and plaintiffs need leave of court to file
this pleading. Doc. 33, att. 1, p. 1. Plaintiffs oppose the
motion arguing that leave is not required because the First
Amended Class Action Complaint is a proper amendment under
Rule 15(a)(1)(B). Doc. 38, p. 3.
the Federal Rules of Civil Procedure, amended pleadings are
allowed once as a matter of course 21 days after service or
“if the pleading is one to which a responsive pleading
is required, 21 days after service of a responsive pleading
or 21 days after service of a motion under Rule 12(b), (e) or
(f), whichever is earlier.” Fed.R.Civ.P.
15(a)(1)(A)(B). Supplemental pleadings, however, may only be
submitted “[o]n motion and reasonable notice.”
Fed.R.Civ.P. 15(d). “The distinction between
supplemental pleadings and amended pleadings is more than one
of mere nomenclature.” US ex rel. Kinney v.
Stoltz, 2002 WL 523869, at *3 (D. Minn. Apr. 5, 2002).
“[T]he important distinction between amended and
supplemental pleadings is when the events pleaded
occurred.” Dean v. Ford Motor Credit Co., 885
F.2d 300, 302 (5th Cir. 1989). Amended pleadings relate to
events that occurred before a pleading is filed, supplemental
pleadings relate to events that occurred after. Id.
(citing 6C. Wright & A. Miller, Fed. Prac. & Proc.
Civ. § 1504 (3rd ed.)).
22, 2019, before filing its answer to Bobby's initial
complaint, Waitr filed a Motion to Dismiss pursuant to Rule
12(b)(6). Doc. 15. On August 12, 2019, plaintiffs filed a
First Amended Class Action Complaint. Doc. 30. Under the
plain language of Rule 15(a)(1)(B) and Rule 15(d), although
Bobby's was permitted to amend its pleading in response
to Waitr's motion to dismiss as a matter of course, it
needed leave of court to file a supplemental complaint.
First Amended Class Action Complaint clearly contains
allegations based upon conduct that occurred prior to the
filing of Bobby's initial complaint on April 30, 2019.
See, e.g., Doc. 30, p. 13. However, the First
Amended Class Action Complaint also contains allegations that
relate to events that occurred after April 30, 2019.
Specifically, plaintiffs claim Waitr engaged in
“unlawful conduct” on July 1, 2019 when it
allegedly notified its restaurant customers that all active
agreements were being terminated and replaced with new
agreements. Doc. 30, p. 2, 10, 14. The First Amended Class
Action Complaint proposes a new class based on these
allegations which includes “[a]ll persons or entities .
. . who received notification in July 2019 that Waitr, Inc.