Volm Companies, Incorporated v. Mark' Andy, Inc.

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION VOLM COMPANIES, INCORPORATED, ) et al., ) ) Plaintiffs, ) ) Vv. ) Case No. 4:22 CV 373 CDP ) MARK’ ANDY, INC., ) ) Defendant. ) MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs’ Motion to Amend Pleadings [49], by which plaintiffs move to file a Second Amended Complaint, is GRANTED. The motion to amend was filed within the time prescribed by the Court’s orders, and plaintiffs are permitted to plead alternative theories of recovery on the facts alleged. While they are not permitted to collect under both breach of contract and breach of warranty claims, I will allow them to plead these claims in the alternative. Cf M & I Marshall & Ilsley Bank v. Sader & Garvin, L.L.C., 318 S.W.3d 772, 779 (Mo. Ct. App. 2010) (citing cases). At some point, however, “an election must be made.” Trien v. Croasdale Constr. Co., 874 S.W.2d 478, 481 (Mo. Ct. App. 1994).

ithe. & Jo CATHERINE D.PERRY // UNITED STATES DISTRICT JUDGE Dated this 3rd day of March, 2023.