Opinion
CIVIL 6:20-CV-00055
09-22-2021
CHRISTIANA CAMPOS and LENA CORTEZ, Plaintiffs, v. CITY OF PORT LAVACA, TEXAS, JOSE PENA, JUAN OBREGON and KYLE CURTIS, Defendants.
Signed on September 21, 2021.
ORDER
Drew B. Tipton
Pending before the Court is Defendants City of Port Lavaca, Texas, Jose Pena, Juan Obregon, and Kyle Curtis's (“Defendants”) Motion to Dismiss Plaintiffs Christiana Campos and Lena Cortez's (“Plaintiffs”) Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 9). For the following reasons, the Court DENIES AS MOOT the Defendants' Motion to Dismiss.
On August 27, 2020, the Plaintiffs filed their Complaint asserting claims under 42 U.S.C. § 1983. (Dkt. No. 1). The Defendants filed a Motion to Dismiss the Complaint on November 10, 2020. (Dkt. No. 9). A month later, the Plaintiffs filed an amended Complaint. (Dkt. No. 18).
The Plaintiffs properly filed a motion to amend their Complaint with the Court, (Dkt. No. 16), which was granted, (Dkt. No. 17).
In the Fifth Circuit, an amended complaint supersedes the original “unless the amended complaint incorporates the original by reference or explicitly adopts it.” Velazquez v. United States, 835 Fed.Appx. 733, 736 (5th Cir. 2020) (per curiam); see also King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.”).
The Plaintiffs' amended Complaint neither incorporates the original Complaint by reference, nor does it explicitly adopt it. As a result, the Plaintiffs' Original Complaint, (Dkt. No. 1), is “of no legal effect.” King, 31 F.3d at 346. Accordingly, the Defendants' Motion to Dismiss, (Dkt. No. 9), is DENIED WITHOUT PREJUDICE.
The Court acknowledges that the Defendants filed a new Motion to Dismiss, (Dkt. No. 20), after the Plaintiffs filed their amended Complaint. This Motion to Dismiss will be addressed by separate order of the Court.
It is SO ORDERED.