Opinion
6:22-CV-00730-ADA-JCM
03-07-2023
MAUREEN GREEN, Plaintiff, v. STATE FARM LLOYDS, Defendant.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendant's Motion to Dismiss (ECF No. 3) and the responses, replies, and supplemental briefing thereto. For the reasons described below, the Court RECOMMENDS that Defendant's Motion be DENIED.
I. BACKGROUND
Plaintiff Maureen Green filed this lawsuit against State Farm Lloyds for breach of contract, anticipatory repudiation, breach of the duty of good faith and fair dealing, deceptive trade practices and acts, violations of Chapter 542 of the Texas Insurance Code, violations of Chapter 541 of the Texas Insurance Code, fraud, and conspiracy in District Court in Bell County, Texas. Pl.'s Orig. Pet. (ECF No. 1, Ex. C). State Farm removed this lawsuit to federal court. Def.'s Notice of Removal (ECF No. 1). State Farm subsequently filed this Motion to Dismiss, arguing that Plaintiff's state court petition fails to satisfy Federal Rules of Civil Procedure 8 and 9 and should be dismissed under Federal Rule of Civil Procedure 12(b)(6). Specifically, Defendant argues that Plaintiff has failed to adequately plead a viable cause of action for her extra-contractual claims but does not argue that Plaintiff failed to plead a breach of contract claim. Def.'s Mot. at 2. Plaintiff filed an Amended Complaint and responded to Defendant's Motion to Dismiss. Pl.'s Am. Compl. (ECF No. 5); Pl.'s Resp. (ECF No. 6).
II. DISCUSSION
Plaintiff's amended complaint renders the original complaint of no legal effect because the amended complaint does not refer to, adopt, or incorporate by reference the original complaint. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Generally, an amended complaint renders pending motions moot, but not always. See Cedillo v. Standard Oil Co. of Tex., 261 F.2d 443 (5th Cir. 1958) (holding that the district court erred in granting an abandoned motion to dismiss). Courts have discretion to apply the original motion to dismiss to the amended complaint. Rivera v. BMW of N. Am., LLC, No. 2:19-CV-7, 2019 WL 2539200 at *1 (N.D. Tex. Mar. 14, 2019), R. & R. adopted, No. 2:19-CV-007-D, 2019 WL 2540677 (N.D. Tex. Mar. 29, 2019) citing New World Int'l, Inc. v. Ford Glob. Techs., LLC, No. 3:16-CV-1112-M, 2017 WL 1078525, at *5 (N.D. Tex. Mar. 22, 2017).
Defendant has not filed another motion to dismiss, but instead filed a Reply. Def.'s Reply (ECF No. 7). Defendant argues in its reply that Plaintiff's amended complaint still fails to comply with the applicable pleading requirements. Id. at 1. Here, Plaintiff's Amended Complaint is substantially different from the original state court complaint. The Court declines Defendant's invitation to comb through Plaintiff's original and amended complaints to determine whether Plaintiff's Amended Complaint satisfies Plaintiff's pleading burden. Accordingly, the Court RECOMMENDS that the Motion to Dismiss be DENIED AS MOOT.
III. CONCLUSION
For the reasons outlined above, the undersigned RECOMMENDS that the Defendant's Motion (ECF No. 3) be DENIED AS MOOT.
IV. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.