United States District Court, Southern District of New York
April 22, 2003
ELIZABETH REECE, PLAINTIFF, AGAINST HEWLETT-PACKARD COMPANY, DEFENDANT.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge
By order dated April 8, 2003, this Court granted defendant's motion to dismiss Count Three of plaintiff's complaint for failure to state a claim upon which relief may be granted. Ten days later, it received a memorandum in opposition to the motion which apparently was served late because counsel had an informal understanding, unknown to the Court, extending plaintiff's time to respond to the motion. Accordingly, the Court considers the belated papers as a motion for reconsideration.
The new papers resist the motion to dismiss by quoting from an amended complaint which, plaintiff claims, is sufficient. Unfortunately, however, no amended complaint ever has been filed in this action. The motion the Court ruled upon was addressed to the original complaint, and the Court remains of the view that Count Three of that pleading was dismissed correctly.
Accordingly, treating plaintiff's papers as a motion for reconsideration, the motion is granted. On reconsideration, however, the Court adheres to the April 8 order dismissing Count Three of the complaint. Plaintiff of course is free to seek leave to amend. Should she do so, however, she should take into account the points made in the April 8 order.
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