United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
OSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Paymentech, LLC's
Motion for Reconsideration. (Doc. 68.) Plaintiff MNG 2005,
Inc., has filed a memorandum in opposition. (Doc. 71.) Also
pending are Plaintiff's Motion for Leave to Amend (Doc.
75), and Motion for Extension of Time (Doc. 79). Defendant
has responded to both motions. (Docs. 77, 80.)
for Reconsideration (Doc. 68)
August 2, 2019, the Court entered an order granting in part
Paymentech's Motion to Dismiss. (Doc. 67.) The Court
dismissed Counts II and VI against Paymentech but denied its
request to dismiss Count III. (Id.) Paymentech
argues that Count III, a claim for conversion, fails as a
matter of law because Plaintiff seeks repayment of a monetary
amount rather than a specific chattel. (Doc. 68.)
Federal Rule of Civil Procedure 54(b), a district court may
“exercise its general discretionary authority to review
and revise its interlocutory rulings prior to the entry of
final judgment.” Evans v. Contract Callers,
Inc., No. 4:10CV2358 FRB, 2012 WL 234653, at *2 (E.D.
Mo. Jan. 25, 2012) (quoting Auto Servs. Co. v. KPMG,
LLP, 537 F.3d 853, 856-57 (8th Cir. 2008)). The Court
may amend or reconsider its ruling “to correct any
clearly or manifestly erroneous findings of facts or
conclusions of law” but may not do so based on facts or
legal arguments “which could have been, but were not,
raised or adduced during the pendency of the motion of which
reconsideration was sought.” Evans, 2012 WL
234653, at *2 (citations omitted).
argument is well taken and the Court concludes that
dismissing Count III is appropriate. Conversion is not an
appropriate vehicle to recoup money except in uncommon
situations where the money represents some specific chattel.
See Boswell v. Panera Bread Co., 91 F.Supp.3d 1141,
1145 (E.D. Mo. 2015) (“there is no claim for conversion
where the defendant allegedly retained funds”);
Capitol Indem. Corp. v. Citizens Nat. Bank of Fort Scott,
N.A., 8 S.W.3d 893, 900 (Mo.Ct.App. 2000) (citation
omitted) (“Specific checks, drafts or notes will
support a cause of action for conversion where they can be
described or identified as a specific chattel”)). Put
simply, a plaintiff cannot “recast what amounts to a
claim for damages into a claim for conversion.”
Boswell, 91 F.Supp.3d at 1145. That is precisely
what Plaintiff seeks to do in this case. Accordingly, the
Court will grant Paymentech's Motion for Reconsideration
and will dismiss Count III as against it.
for Leave to Amend (Doc. 75)
to amend pleadings are governed by Rule 15(a) of the Federal
Rules of Civil Procedure. See Lexington Ins. Co. v. S & N
Display Fireworks, Inc., 2011 WL 5330744, at *2 (E.D. Mo.
Nov. 7, 2011). Under Rule 15(a), leave to amend should be
“freely given when justice so requires.”
Fed.R.Civ.P. 15(a)(2). Under this liberal standard, denial of
leave to amend pleadings is appropriate only if “there
are compelling reasons such as undue delay, bad faith or
dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
nonmoving party, or futility of the amendment.”
Sherman v. Winco Fireworks, Inc., 532 F.3d
709, 715 (8th Cir. 2008). “The party opposing the
amendment has the burden of demonstrating the amendment would
be unfairly prejudicial.” Nadist, LLC v.
Doe Run Res. Corp., No. 4:06CV969 CDP, 2009 WL 3680533,
at *1 (E.D. Mo. Oct. 30, 2009) (citing Roberson v. Hayti
Police Dept., 241 F.3d 992, 995 (8th Cir. 2001)).
“Whether to grant a motion for leave to amend is within
the discretion of the Court.” Id. (citing
Popoalii v. Correctional Med. Servs., 512 F.3d 488,
497 (8th Cir. 2008)).
oppose Plaintiff's motion on the ground that it fails to
sufficiently explain the new parties, facts, or claims. (Doc.
77.) The Court believes Defendants' arguments are better
suited for a later filing after Plaintiff has formally
amended its complaint. The Court will therefore grant its
leave but will direct Plaintiff to file a new amended
complaint in light of the Court's dismissal of Count III.
for Extension of Time (Doc. 79)
review and in light of the Court's ruling on the other
motions, the Court will grant Plaintiff's extension.
Plaintiff shall respond to Defendants' discovery requests
no later than November 18, 2019.
IT IS HEREBY ORDERED that Paymentech's
Motion for Reconsideration (Doc. 68), is
IS FURTHER ORDERED that Plaintiff MNG 2005,
Inc.'s Motion for Leave to Amend (Doc. 75), is
GRANTED. Plaintiff shall file a new amended
complaint that complies with this order within thirty (30)
days of the date of its date.
IS FINALLY ORDERED that Plaintiffs Motion for
Extension of Time (Doc. 79), is GRANTED.
Plaintiff shall respond to Defendants' ...