United States District Court, S.D. Texas, Houston Division
CAROL L. HYMES, TEAIRRA L. HYMES, Plaintiffs,
AMCAP MORTGAGE, LTD., CENLARFSB, LAKEVIEW LOAN SERVICING, LLC, Defendants.
Rosenthal, Chief United States District Judge.
Plaintiffs, Carol L. Hymes and Teairra L. Hymes, sued AmCap
Mortgage Limited, Cenlar FSB, and Lakeview Loan Servicing,
LLC, in state court, alleging that the Lenders agreed to
allow the Plaintiffs to delay mortgage payments following
Hurricane Harvey, but then refused to accept the delayed
payments and scheduled a foreclosure sale. (Docket Entry No.
1-3 at 3-4; Docket Entry No. 1-5 at 3). The Plaintiffs
asserted claims for contract breach, fraud, negligent
misrepresentation, and various Texas Code violations, seeking
a temporary restraining order, declaratoryjudgment, and
damages. (Docket Entry No. 1-3 at 5-11; Docket Entry No.
1-5at4-ll). The state court issued a temporary restraining
order in February 2019, enj oining the foreclosure sale and
scheduling a preliminary injunction hearing for February 15.
(Docket Entry No. 1-6). The temporary restraining order was
set to expire on February 18. (Id.).
Lenders removed to federal court on February 14, 2019, and
then moved to dismiss, arguing that the complaint failed to
state plausible claims. (Docket Entry Nos. 1, 4). In March,
the Plaintiffs amended their complaint and responded to the
motion to dismiss. (Docket Entry Nos. 10-11).
the amended complaint contained many of the same allegations
as the original complaint, it had important differences. The
amended complaint explained that "AmCap told Plaintiffs
that they did not need flood insurance and that if they did
get it their monthly expenses would be too high to qualify
for the [l]oan." (Docket Entry No. 10 at 3). It alleged
that the Lenders "have been furnishing negative credit
information regarding Plaintiffs and the [l]oan to credit
reporting agencies." (Id. at 5). The amended
complaint elaborated on how the Lenders allegedly breached
the forbearance agreement; identified the alleged
misrepresentations supporting the fraud, negligent
misrepresentation, and deceptive trade practice claims;
explained how the Lenders violated the Texas Finance Code;
asked for declaratory judgment on two additional issues; and
asserted a claim for reporting inaccurate credit information.
(Id. at 6-15).
court construed the amended complaint as a motion for leave
to amend but, before ruling on that motion, asked the parties
to brief whether the amended complaint made the Lenders'
motion to dismiss moot. (Docket Entry Nos. 18-19). The
Plaintiffs stated that they had leave to amend as a matter of
course because the amended complaint was filed within 21 days
after a responsive pleading, and that the amended complaint
made the motion to dismiss moot. See Fed. R. Civ. P.
15(a)(1)(B) ("A party may amend its pleading once as a
matter of course ... 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule
12(b)."). The Lenders responded that the amended
complaint made the motion to dismiss moot as to one claim and
the injunctive relief, but not as to the other claims.
(Docket Entry No. 21 at 1).
Lenders then discussed how the amended complaint failed to
cure the other claim deficiencies, addressing the alleged
misrepresentations and contract breaches identified in the
amended complaint. (Id. at 1-5).
Rule of Civil Procedure 15(a)(1) permits a party to amend its
pleading once as a matter of course within 21 days of serving
it or, "if the pleading is one to which a responsive
pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier." The Federal
Rules, including Rule 15, apply to an action only "after
it is removed from a state court." FED. R. Civ. P.
81(c)(1); see Pena v. City of Rio Grande City, 879
F.3d 613, 617 (5th Cir. 2018) ("Upon removal, the
federal pleading standards control."). If a party cannot
amend as a matter of course, the court "should freely
give leave when justice so requires." Fed.R.Civ.P.
15(a)(2). "The language of this rule evinces a bias in
favor of granting leave to amend, and a district court must
possess a substantial reason to deny a request." SGK
Props., L.L.C v. U.S. Bank Nat'l Assoc, 881 F.3d
933, 944 (5th Cir. 2018) (alterations and quotation omitted).
Plaintiffs filed a supplemental complaint in state court
before this case was removed. (Docket Entry No. 1-5 at 1-11).
While "[i]t is unclear whether a plaintiff who amended
its pleading in state court prior to removal may take
advantage of Rule 15(a)(1)," IMA Leasing, Inc. v.
Vacuum Truck Sales & Serv., LLC, No. 15-708-SDD-RLB,
2016 WL 8261723, at * 1 (M.D. La. Jan. 6, 2016), the Lenders
have not argued that the court should deny leave to amend.
The court finds that the proposed amendment is not in bad
faith or futile, and that allowing it would not unfairly
prejudice the Lenders. See SGK, 881 F.3d at 944-45.
The court grants leave to amend. Fed.R.Civ.P. 15(a)(2).
Plaintiffs argue that the amended complaint makes the
Lenders' motion to dismiss moot as a matter of law.
(Docket Entry No. 20 at 2-3). The Lenders respond that the
amended complaint makes part of the motion to dismiss moot,
but they argue that the amendment did not cure many of the
deficiencies identified in the motion to dismiss. (Docket
Entry No. 21).
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." King v. Dogan,
31 F.3d 344, 346 (5th Cir. 1994); see Pintando v.
Miami-Dade Housing Agency, 501 F.3d 1241, 1243 (11th
Cir. 2007) ("As a general matter, an amended pleading
supersedes the former pleading; the original pleading is
abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary."
(alteration and quotation omitted)). "A plaintiffs
filing of an amended complaint may render moot a pending
motion to dismiss." Rodriguez v. Xerox Bus. Servs.,
LLC, No. EP-16-CV-41-DB, 2016 WL 8674378, at *l (W.D.
Tex. June 16, 2016) (collecting cases); see, e.g.,
Griffin v. Am. Zurich Ins. Co., 697 Fed.Appx. 793, 797
(5th Cir. 2017) ("Once filed, that amended complaint
rendered all earlier motions, including Griffin's motion
for partial summary judgment, moot."); Stredwick v.
Dall. Margarita Soc 'y, Inc., No. 12-CV-623-F, 2012
WL 12893430, at * 1 (N.D. Tex. June 27, 2012) ("The
filing of an amended complaint generally renders pending
motions moot."). If "some defects raised in the
original motion remain in the new pleading, the court simply
may consider the motion as being addressed to the amended
pleading." 6 Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 1476 (3d ed. Nov.
2018); see Bell v. MoawadGrp., LLC, No.
A-17-CA-73-SS, 2017 WL 2841679, at *2 n.l (W.D. Tex. June 30,
2017) ("Whether the filing of an amended complaint
renders a motion to dismiss moot is discretionary.").
amended complaint alleges that the Lenders have reported
inaccurate credit information about the Plaintiffs; asserts a
new claim based on that allegation; alleges some additional
detail as to what the Lenders told the Plaintiffs; and
identifies the specific allegations supporting each claim,
including the statements made the basis of the fraud,
negligent misrepresentation, and deceptive trade practice
claims. The Lenders acknowledge that the amended complaint
cures at least one claim deficiency.
the amended complaint differs in important ways from the
original complaint, and because the issues related to the
amended complaint are most efficiently addressed and resolved
in a single motion to dismiss, the court denies the
Lenders' motion to dismiss as moot, without prejudice.