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Diesel Power Source v. Crazy Carls Turbos, Inc.

United States District Court, D. Utah

March 24, 2017

DIESEL POWER SOURCE a Utah limited liability company; BRET PARK, an individual Utah resident; Plaintiffs,
v.
CRAZY CARL'S TURBOS, INC., a Tennessee corporation; CARL TETREAULT, an individual Tennessee resident, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING [58] MOTION TO AMEND AND FINDING AS MOOT [51] MOTION TO DISMISS

          David Nuffer United States District Judge.

         This order grants a motion to amend and finds as moot a motion to dismiss a prior version of a complaint.

         BACKGROUND

         On September 23, 2014, Plaintiffs Diesel Power Source and Bret Park (collectively “DPS”) filed a complaint (“Complaint”) against Defendants Crazy Carl's Turbos, Inc. and Carl Tetreault (collectively “Crazy Carl's”).[1] The Complaint was filed in state court and asserted the following causes of action:

1. Tortious Interference with Prospective Economic Relations
2. Defamation
3. Commercial Disparagement
4. Product Disparagement
5. Business Disparagement
6. Trade Libel 7. False Light 8. Unfair Competition
9. Deceptive Practices/False Advertising
10. Injunctive Relief[2]

         The lawsuit was removed to federal court on November 12, 2014 based on diversity.[3]

         On December 1, 2014, Crazy Carl's moved to dismiss the Complaint. The motion to dismiss suspended the need for Crazy Carl's to file a responsive pleading.[4] However, when the motion to dismiss was denied on March 10, 2015, [5] Crazy Carl's was required to file an answer to the Complaint. On March 31, 2015, Crazy Carl's filed an answer to the Complaint (“Answer”).[6]

         On July 7, 2016, the parties filed a joint motion for leave to file an amended complaint.[7]That motion was granted, and on July 8, 2016, DPS filed the First Amended Complaint.[8] The First Amended Complaint eliminated the tortious interference and business disparagement claims, and added a claim for “alter ego-piercing the corporate veil.” The First Amended Complaint asserted the following causes of action:

1. Defamation per se
2. Commercial Disparagement
3. Product Disparagement
4. Trade Libel
5. False Light
6. Unfair Competition
7. Deceptive Practices/False Advertising
8. Injunctive Relief
9. Alter Ego-Piercing the Corporate Veil[9]

         On July 22, 2016, Crazy Carl's moved to dismiss the First Amended Complaint (“Motion to Dismiss”).[10] The Motion to Dismiss argues that DPS “has failed to adequately plead any claim against” Crazy Carl's, [11] but only describes two alleged failures: failure to adequately plead defamation and failure to adequately plead alter ego-piercing the corporate veil.[12] DPS opposes the Motion to Dismiss (“Opposition to Motion to Dismiss”).[13] Crazy Carl's did not submit a reply in support of the Motion to Dismiss.

         On August 12, 2016, after the Motion to Dismiss was filed, DPS moved to amend its First Amended Complaint (“Motion to Amend”).[14] DPS argued that the defamation per se claim “was clearly an error[, ]” and that it should have been a claim for defamation only.[15] DPS argued that it had been in discussions with Crazy Carl's prior to filing the First Amended Complaint, and all parties agreed that Bret Park would be removed, the claims for tortious interference with prospective business relations and business disparagement would be removed, and the claim for alter ego-piercing the corporate veil would be added.[16] DPS argued that by simple oversight, likely the “poor use of the copy and paste function, ” the claim for Defamation per se was added instead of a claim for defamation. Crazy Carl's argues that these are “unbelievable assertions” and DPS should not be allowed to amend.[17]

         DISCUSSION

         Because amendment may affect the Motion to Dismiss, the Motion to Amend will be addressed first.

         Motion ...


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