November 12, 2013
XENOS, INC., a Nebraska corporation; and OTTILIA CHAPMAN, an individual; Plaintiffs,
TILLY'S, INC., a Delaware corporation; Defendant.
MEMORANDUM AND ORDER
CHERYL R. ZWART, Magistrate Judge.
The plaintiff has again moved to amend its complaint to add World of Jeans and Tops, Inc. (WOJT) as a named defendant. (Filing No. 26). The plaintiff's previous motion to add WOJT as a defendant was denied. (Filing No. 25). In its order denying the motion, the court explained that the sole allegation against WOJT was that it operated the Tilly's clothing business as a "joint enterprise" with defendant Tilly's, Inc., and this "mere conclusory allegation" was "insufficient under the pleading standards of Iqbal and Twombly." (Filing No. 25, at CM/ECF p. 4).
The proposed amended complaint now before the court alleges Tilly's, Inc. and WJOT operate the "Tilly's" retail store at the Westroads Mall in Omaha, Nebraska as a joint effort for a mutual profit, and for the common purpose of a national effort to establish the brand name "Tilly's" throughout the United States, and that Tilly's Inc. and WOJT share the direction, supervision and control of the Tilly's retail store. (Filing No. 26, at CM/ECF p. 6, ¶¶ 13-14).
The defendants oppose plaintiff's current motion to amend, and have submitted evidence stating there is no factual support for the allegations in the proposed amended complaint. The question of whether the plaintiff's claims are supported by the evidence should be decided by a motion for summary judgment or at trial, and not on a motion to file an amended complaint. Assuming the truth of plaintiff's factual allegations in the proposed amended complaint, the complaint sufficiently alleges a claim for recovery against not only Tilly's, Inc., but also World of Jeans and Tops, Inc.
IT IS ORDERED:
1) The plaintiff's motion to amend, (Filing No. 26), is granted.
2) On or before November 15, 2013, the plaintiff shall file its amended complaint, a copy of which is attached to its motion. The plaintiff shall thereafter promptly effectuate service upon World of Jeans and Tops, Inc.
3) All deadlines within the court's initial progression order, (Filing No. 16), remain in effect.