The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
On October 14, 2004, MK Systems, Inc. ("MK") filed the original
complaint in this action, asserting three claims against defendants David
Schmidt ("Schmidt") and LifeWave Products, L.L.C. ("LifeWave")
(collectively, the "Defendants"): (i) a claim for fraud in the inducement
asserted against both Defendants; (ii) a claim for breach of contract
asserted against LifeWave; and (iii) a claim asserted against both
Defendants for alleged violations of "the laws of the Food and Drug
Administration" (Compl. at ¶ 63) for which MK is seeking a permanent
injunction to prevent Defendants from manufacturing or commercially
distributing certain products unless and until the products are "fully
compliant with FDA law." (Compl. at ¶ 68).
According to the complaint, which was verified by Mark Klein, the
"President of the corporate plaintiff in the above-captioned action"
(Compl. at 15), MK is a corporation incorporated under the laws of the
State of New York, having its principal place of business at 500 Fifth
Avenue in the City, County and State of New York. (See Compl. at ¶ 1.)
LifeWave is alleged to be a limited liability company existing under and
by virtue of the laws of the State of Georgia, with its principal place
of business in Suwanee, Georgia. (See Compl. at ¶ 3.) Schmidt is alleged
to be a "member" of LifeWave, whose offices are alleged to be in
Suwanee, Georgia. (Compl. at ¶ 4.) Jurisdiction is alleged under both
28 U.S.C. § 1331 and 28 U.S.C. § 1332.
On December 22, 2004, Schmidt moved to dismiss the complaint pursuant
to Rule 12(b), Fed.R.Civ.P., on the grounds that MK lacks capacity to
bring the suit and that no private right of action exists under the
Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq. (the
"FDCA"), or, in the alternative, to transfer the action to the United
States District Court in the Northern District of Georgia pursuant to
28 U.S.C. § 1404(a). On January 11, 2005, LifeWave moved to dismiss MK's
complaint, adopting the arguments of Schmidt.
One day earlier, by order to show cause dated January 10, 2005, MK
moved to stay all proceedings and enjoin LifeWave from prosecuting an
action entitled LifeWave Products, LLC v. Kline, et al., Case No. 04
Civ. 3710, currently pending in the United States District Court for the
Northern District of Georgia, Atlanta Division (the "Georgia action").
The Georgia action was commenced on December 21, 2004, and MK argued that
the Georgia action should be stayed pursuant to the so-called first-filed
On January 14, 2005, Active-8, Inc., d/b/a MK Lifepatch Systems, Inc.
("Active-8") filed a document in this matter styled a first amended
complaint. According to the purported amended complaint, Active-8 is
alleged to be a corporation incorporated under the laws of the State of
Nevada, having its principal place of business at 500 Fifth Avenue, in
the City, County and State of New York. Active-8, it is alleged, "was
formally [sic] known as MK
Systems, Inc." and is allegedly "registered to do business in the states
of New York and New Jersey." (Active-8 Am. Compl. at ¶ 1.) Apart from
the addition of two new paragraphs and the absence of verification, the
purported first amended complaint and the original complaint are
substantially the same.
A hearing was held on the motion to enjoin the Georgia action on
January 19, 2005, and the motions to dismiss and transfer the action were
heard on January 26, 2005. On January 25, 2005, Defendants filed a motion
to dismiss Active-8's amended complaint on the ground that Active-8 was
not a party to the action or, in the alternative, to transfer the action
For the reasons set forth below, Defendants' motions to dismiss the
original complaint are granted, and this action is dismissed in its
entirety without prejudice subject to the condition specified below.
A. The Purported Amendment By Active-8 Was Improper And The Original
Complaint Remains The Operative Complaint
Pursuant to Rule 15(a), Fed.R.Civ.P., "[a] party may amend the party's
pleading once as a matter of course at any time before a responsive
pleading is served . . ." Fed.R.Civ.P.
15(a). As a motion to dismiss is not itself a pleading, see Fed.R.Civ.P.
7(a), where a plaintiff amends its complaint after a defendant has moved
to dismiss the complaint but before the motion has been decided, the
motion to dismiss is rendered moot. See, e.g., United Magazine Co. v.
Murdoch Magazines Distrib., Inc., 146 F. Supp. 2d 385, 416 (S.D.N.Y.
In this case, however, MK did not amend its complaint. Instead, the
purported first amended complaint was filed by Active-8, a corporation
which, unlike MK, is alleged to be incorporated under the laws of the
State of Nevada and registered to do business in the States of New York
and New Jersey.
Rule 15(a) provides that a party "may amend the party's pleading. . .
." Fed.R.Civ.P. 15(a) (emphasis supplied). Active-8 could not amend the
original complaint as of right as it is not "the party" which filed the
original complaint but an entity bearing a different name and, according
to the purported amended complaint, allegedly incorporated in a different
state. The allegation that Active-8 was, at some unspecified time in the
past, "formally known as MK Systems, Inc." (Active-8 Am. Compl. at ¶ 1),
is a suggestive coincidence of name but provides no basis to conclude
that Active-8, the alleged Nevada corporation, is one and the same entity
as MK, the alleged New York corporation which filed the complaint in this
If either MK or Active-8 wished to substitute Active-8 as plaintiff in
place of MK as the real party in interest under Rule 17(a), Fed.R.Civ.P.,
the proper means for doing so would have been to seek leave of the
Court. See generally Advanced Magnetics, Inc. v. Bayfront Partners,
Inc., 106 F. 3d 11, 20 (2d Cir. 1997) ("A Rule 17(a) substitution of
plaintiffs should be liberally allowed when the change is merely formal
and in no way alters the original complaint's factual allegations ...