United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
17, 2018, the Court stayed this case until it decided the
second motion to dismiss filed by Defendants Leah Stewart,
Eric Castro, and Chuck McCormick (collectively,
“Defendants”), (Dkt. 9). (Order, Dkt. 25). Before
the Court now is Plaintiff Madeleine Connor's
(“Connor”) motion for reconsideration, in which
she asks the Court to vacate its order staying this case.
sued Defendants on August 25, 2017. (Compl., Dkt. 1). Connor
never served her original complaint on Defendants. On March
1, 2018, Defendants filed a motion to dismiss, in which they
argued that the Court must dismiss this action under Federal
Rule of Civil Procedure Rule 4(m) because Connor never served
them with her complaint. (Defs.' First Mot. Dismiss, Dkt.
5, at 7). They also sought dismissal under Rules 12(b)(1) and
12(b)(6). (Id. at 4-7).
did not respond to Defendants' first motion to dismiss;
she instead amended her complaint. (Am. Compl., Dkt. 8).
Defendants now argue, and the Court agrees, that when Connor
amended her complaint, she validly did so as a matter of
course. Defs.' Resp. Mot. Recons., Dkt. 27, at
2). Federal Rule of Civil Procedure 15(a)(1)(B) permits a
party to amend its complaint once as a matter of course
within 21 days of service of a motion under Rule 12(b).
Defendants filed a motion to dismiss her claims pursuant to
Rule 12(b), (Dkt. 5); Connor then filed an amended complaint,
her first, 14 days later. (Am. Compl., Dkt. 8). She therefore
amended her complaint as a matter of course under Rule
15(a)(1)(B). In doing so, she filed a pleading that
superseded an original complaint and rendered moot
Defendants' motion to dismiss her original complaint.
See 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.”);
Boelens v. Redman Homes, Inc., 759 F.2d 504, 508
(5th Cir. 1985) (same).
now argues that because she had not served her original
complaint, her amended complaint was invalid. (Reply, Dkt.
28, at 1 (“[U]nder Rule 4(m), the [original] complaint
was already dead. That is, because the suit was not served
within 90 days, any subsequent action by Plaintiff was a
nullity.”)). According to Connor, “it would be
absurd to suggest” that a plaintiff who failed to
timely serve her original complaint could later validly amend
her complaint. (Id.). Her position is now that the
Court lacks jurisdiction to enter any order in this
case other than an order dismissing this case without
prejudice under Rule 4(m). (Mot. Recons., Dkt. 25, at 1).
Accordingly, the Court's order staying this case was
error because “the only action this Court was
authorized to take was to dismiss this cause without
prejudice to refiling, after notice [sic] Plaintiff, but the
Court failed to do so.” (Id.). She asks the
Court to withdraw its order and dismiss her case without
prejudice. (Id. at 3).
Court has difficulty believing Connor's current
litigation position is asserted in good faith. It is
difficult to square her position that it would be
“absurd” to think that a plaintiff could amend a
complaint not timely served under Rule 4(m) with the fact
that she filed an amended complaint two months earlier. More
to the point, if Connor honestly believes that the Court
lacks jurisdiction to do anything other than dismiss her
case, it is hard to make sense of her filings prior to the
instant motion for reconsideration. Before taking her current
position that the Court “is prohibited from issuing any
order other than an order of dismissal without prejudice,
” (Mot. Recons., Dkt. 25, at 2), Connor asked the Court
for orders to strike Defendants' supplemental filings,
(Dkts. 11, 15), and for an order denying Defendants'
second motion to dismiss, (Dkt. 16). Indeed, just one week
before taking her current position, Connor filed a proposed
scheduling order, (Dkt. 22), a notice indicating that she
believed there was a “probable need for electronic
forensic discovery, ” (Pl.'s Report, Dkt. 21, at
2), and a response asking the Court not to stay this action
because it would “serve the ends of justice” to
issue a scheduling order and because Defendants “should
not be protected from discovery any longer.” (Pl.'s
Resp. Mot. Prot. Order, Dkt. 23, at 2).
Connor wanted this action dismissed under Rule 4(m), she
could have asked the Court to do so in her response to
Defendants' first motion to dismiss. Instead, she chose
to amend her complaint as a matter of course. In doing so,
she superseded her original complaint and rendered
Defendants' first motion to dismiss moot. IT IS
THEREFORE ORDERED that Connor's Objection to
Court's Stay and Order of Protection and/or Motion for
Reconsideration, (Dkt. 26), is DENIED.
Defendants' first motion to dismiss, (Dkt. 5), is
DENIED AS MOOT.
 Connor also appears to have believed
she was entitled to amend as a matter of course, given that
she did not seek leave to file her first amended complaint.