On April 26, 2014, Judge Emmet G. Sullivan issued his Minute Order dispensing at last with the Motion to Dismiss filed by the government.
As predicted, USARK was granted leave to amend its complaint to cure its pleading defects. In lay terms, USARK gets a “do-over” to include facts that should have been plead in its complaint.
Judge Sullivan granted this relief based on USARK’s Response, stating specifically:
[USARK] argues that it can establish both prudential and constitutional standing … and that they have the kind of concrete, particularized injuries required by Article III. Pl.’s Opp’n at 2-14. [USARK] also seeks leave to amend Counts 1 and 4 of its Complaint pursuant to Fed. R. Civ. P. 15(a)(2).
In other words, in its Corrected Response to the Motion to Dismiss, USARK asked that it be permitted to fix its original pleading defects, and the judge granted that request.
The Amended Complaint is now due by May 9th, after which the government may file another Motion to Dismiss, depending on how well USARK is able to fix its original pleading.
The net result is that we are back to square one: USARK will redraft and file a new complaint that will hopefully include factual allegations necessary to survive another Motion to Dismiss.
We are confident that in the six months that will have lapsed between the filing of its original complaint (December 18, 2013) and May 9, 2014 (when the Amended Complaint is due), USARK’s legal team should be able to draft a pleading that will stand so that we can eventually get to the heart of the matter.
- With these additional six months of legal wrangling over pleading defects, how much remains in the budget to fund this litigation?
- How much has been spent at this point arguing over defective pleadings?
- And how much do they anticipate spending on the lawsuit going forward?
As USARK beats the fund raising drum to continue to raise funds for this necessary litigation, they should provide more transparency about how those funds are being allocated and how much more is needed, especially in light of Kelley Drye’s published statement that they have provided a budget to USARK for this lawsuit.