Gray v. Talk Fusion, Inc. et al

Middle District of Florida, flmd-8:2016-cv-02360

ORDER denying without prejudice {{61}} motion to compel arbitration; denying without prejudice {{62}} motion to compel arbitration; denying {{69}} motion to dismiss. See order for details. Signed by Judge Mary S. Scriven on 4/25/2017. (KM)

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PageID 3597 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION DENNIS GRAY, Plaintiff, v. Case No: 8:16-cv-2360-T-35JSS TALK FUSION, INC., et al., Defendants. / ORDER THIS CAUSE comes before the Court for consideration of Defendants' Motion to Dismiss for Lack of Case or Controversy (Dkt. 69), to which Plaintiff has responded in opposition (Dkt. 71). Plaintiff Dennis Gray filed this putative class action against Talk Fusion, Inc. and related entities for violations of the Racketeer Influenced and Corrupt Organizations Act and state-law consumer statutes, based on Defendants' alleged operation of an illegal pyramid scheme. (Dkt. 3) On September 13, 2016, Defendants moved to compel arbitration of Plaintiff's claims. (Dkts. 61, 62). Before the Court ruled on the motions to compel, Defendants filed the instant motion to dismiss, which asserts that the claims of named Plaintiff, Dennis Gray, are moot because he voluntarily rejoined Talk Fusion and is again selling Talk Fusion products. (Dkt. 69 at 2). In response, Plaintiff's putative class counsel does not dispute that the individual claims of Plaintiff Dennis Gray are moot, but he requests leave to amend the complaint, in order to substitute a different named class representative. (Dkt. 71) PageID 3598 Upon consideration, it is hereby ORDERED that: (1) Defendants' Motion to Dismiss for Lack of Case or Controversy (Dkt. 69) is DENIED, and Plaintiff's request to amend is GRANTED. Plaintiff's counsel may file a Second Amended Complaint within sixty 60 days of the date of this Order. Until a Second Amended Complaint is filed, this action is STAYED. If counsel fails to secure another named Plaintiff for this putative class action within the time frame allotted, this action will dismissed without prejudice. (2) Defendants' Motions to Compel Arbitration (Dkts. 61 and 62) are DENIED WITHOUT PREJUDICE AS MOOT. DONE and ORDERED in Tampa, Florida, this 25th day of April, 2017. Copies furnished to: Counsel of Record 2