Opinion
22-CV-7180 (PMH)
04-19-2023
ADAM SICARD, individually and on behalf of others similarly situated, Plaintiff, v. KIRKLAND'S STORES, INC., Defendants.
ORDER
PHILIP M. HALPERN, DISTRICT JUDGE
A pre-motion conference was held on April 18, 2023. Counsel for all parties appeared by telephone. As discussed on the record, the Court heard argument on Defendant's contemplated motion to strike Plaintiff's class allegations and Defendant's contemplated motion to dismiss Plaintiff's Complaint in its entirety, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). Defendant withdrew its motion to strike class allegations at the conference on consent.
The Court construed Defendant's pre-motion letter (Doc. 12) as its motion to dismiss and Plaintiff's response letter (Doc. 13) as its opposition, and considering the parties' arguments thereto, dismissed the motion for the reasons stated on the record. (See Transcript); See In re Best Payphones, Inc., 450 Fed.Appx. 8, 15 (2d Cir. 2011) (finding the Court did not abuse its discretion in construing the parties' letter-motions as the motions themselves, and ruling on them). Specifically, the Court cited the myriad of district court decisions in the Second Circuit rejecting Defendant's arguments related to standing and injury. See, i.e. Harris v. Old Navy, LLC., No. 1:21-CV-9946-GHW, 2023 WL 2139688, at *1 (S.D.N.Y. Feb. 20, 2023). Accordingly, Defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) is denied.
Defendant is directed to file its Answer by May 2, 2023. A Civil Case Management Discovery Plan will be docketed separately.
SO ORDERED: