United States District Court, W.D. Texas, Austin Division
PITMAN, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Libyan Foreign Bank's (the
“Bank”) motion to dismiss. (Dkt. 10). Also before
the Court are several related motions and filings: Plaintiff
LMS Commodities DMCC's (“LMS”) first amended
complaint, (Dkt. 11), its motion for leave to file a second
amended complaint, (Dkt. 17), its motion to strike portions
of the Bank's motion to dismiss, (Dkt. 14), and the
Bank's motion to strike portions of LMS's reply brief
in support of its motion for leave to amend, (Dkt. 22).
Having considered the parties' motions and responsive
briefing, the record, and the relevant law, the Court finds
that: (1) the Bank's motion to dismiss should be granted,
(2) LMS's first amended complaint should be struck, (3)
LMS's motions should both be denied, and (4) the
Bank's motion to strike is moot.
alleges that it secured a $108 million judgment against the
Banks from the Court of Appeals in the Republic of Tunisia
and seeks to have that judgment recognized and enforced by
this Court. (Compl., Dkt. 1, at 1-2). The Bank responds that
LMS's “judgment” is not in fact a judgment at
all; it is an order affirming a lower court's entry of a
prejudgment, temporary asset-freeze order. (Mot. Dismiss,
Dkt. 10, at 1). According to the Bank, LMS fails to state a
claim for relief because the Texas Uniform Foreign Country
Money-Judgment Recognition Act (“UFCMJRA”), under
which LMS seeks relief, does not permit recognition and
enforcement of prejudgment orders. (Id. at 7). The
Bank also objects that the Court lacks jurisdiction to
enforce a prejudgment freeze order in the absence of a final
judgment in LMS's favor. (Id. at 13).
of timely responding to the Bank's motion, see
W.D. Tex. Loc. R. CV-7(e)(2), LMS filed a document purporting
to be an amended complaint 21 days later. (1st “Am.
Compl., ” Dkt. 11). Concerned that LMS had attempted to
smuggle an untimely response under the guise of an amended
complaint, the Court ordered the parties to participate in a
telephone conference at which it directed LMS to seek leave
to file a second amended complaint that did not contain
responsive arguments. (Order, Dkt. 12; Minute Entry, Dkt.
15). LMS nominally did so, filing a three-sentence motion for
leave in which it offers no justification for receiving leave
to amend. (Mot. Leave, Dkt. 17). The parties have since filed
several advisories about the state of the Tunisian litigation
that is the subject of this case. (Dkts. 21, 23, 24).
an amended pleading supersedes the original, King v.
Dogan, 31 F.3d 344, 346 (5th Cir. 1994), the Bank's
motion to dismiss would be moot if LMS has in fact amended
its complaint. For the reasons discussed below, the Court
finds that it has not: LMS's first “amended
complaint” is not in fact a pleading under the Federal
Rules of Civil Procedure, and the Court will deny LMS leave
to file its second “amended complaint.”
First “Amended Complaint”
reply brief, the Bank argues that LMS's “first
amended complaint” is simply an untimely opposition
brief titled as an amended pleading. (Reply Mot. Dismiss,
Dkt. 13, at 3). According to the Bank, this so-called
pleading contains none of the features required by the
Federal Rules of Civil Procedure. (Id. at 3-5). It
does not “state its claims . . . in numbered
paragraphs, ” Fed.R.Civ.P. 10(b); it has no statement
of jurisdiction, Fed.R.Civ.P. 8(a)(1); and it has no demand
for relief, Fed.R.Civ.P. 8(a)(3). (Id.). To conclude
that some of these deficiencies are fortuitously rescued by
LMS's incorporation of its original
complaint would be to overlook the fundamental fact
that almost none of the “amended complaint”
contains factual allegations. Rather, LMS spends much of its
“amended complaint” responding directly to the
Bank's motion to dismiss. (See 1st “Am.
Compl., ” Dkt. 11, at 8 (arguing that the Bank's
declaration in support of its motion should be struck);
id. at 8-9 (arguing against one of the Bank's
defensive arguments in its motion); id. at 9-11
(arguing against another of the Bank's arguments in its
motion)). In the document's “conclusion and prayer,
” LMS asks that the arguments in the Bank's motion
to dismiss “not be given consideration” because
they are “irrelevant.” (Id. at 12).
Because LMS's “amended complaint” largely
offers responsive arguments to the Bank's motion to
dismiss rather than state factual allegations in support of
its own claims for relief, the Court agrees with the Bank
that LMS's “amended complaint” is an untimely
response masquerading as a deficient pleading. The Court will
therefore disregard it. See Simmons v. Outreach Health
Cmty. Care Services LP, EP-15-CV-286-KC, 2016 WL
3162147, at *3 (W.D. Tex. June 3, 2016) (citing Frick v.
Quinlin, 631 F.2d 37, 40 (5th Cir. 1980) (stating that
the “district court was free to either consider or
disregard” an untimely response); J & J Sports
Productions, Inc. v. Tawil, SA-09-CV-327-XR, 2009 WL
4639670, at *2 (W.D. Tex. Nov. 30, 2009)
LMS's Motion for Leave to Amend
Federal Rules of Civil Procedure permit amendment as a matter
of course if the amended pleading is filed within 21 days
after service of a motion under Rule 12(b). Fed.R.Civ.P.
15(a)(1)(B). Otherwise, a party may amend only with the
opposing party's consent or the court's leave.
Fed.R.Civ.P. 15(a)(2). Rule 15(a) requires a trial court
“to grant leave to amend ‘freely,' and the
language of this rule ‘evinces a bias in favor of
granting leave to amend.'” Lyn-Lea Travel Corp.
v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002)
(citation omitted). Accordingly, a district court must
possess a “substantial reason” to deny a request
for leave to amend. Id. Nonetheless, “leave to
amend is by no means automatic.” Jones v. Robinson
Prop. Group, L.P., 427 F.3d 987, 994 (5th Cir. 2005)
(quoting Halbert v. City of Sherman, 33 F.3d 526,
529 (5th Cir. 1994)). In deciding whether to grant leave to
amend, the district court may consider a variety of factors
in exercising its discretion, including undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failures to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, and futility of the amendment.
Id. (quoting Dussouy v. Gulf Coast Inv.
Corp., 660 F.2d 594, 598 (5th Cir. 1981)).
makes no effort to justify receiving leave to amend. In its
bare-bones motion, LMS says only that it would be “[i]n
the interest of justice” to grant it leave. (Mot.
Leave, Dkt. 17). Attached to that motion is another purported
pleading plagued by the same deficiencies as the first. (2nd
“Am. Compl., ” Dkt. 17-1). Like the first, LMS
spends much of the document responding to the Bank's
motion to dismiss. (Id. at 5 (arguing that the law
and facts in the Bank's motion are
“inadmissible”); id. at 6-7 (arguing
that the Bank makes incorrect statements in its motion that
should be “ignored as inadmissible”);
id. at 12-15 (asking the Court to reject a series of
defenses raised by the Bank in its motion); id. at
16 (arguing that the Court should reject the assertions made
by the Bank in its motion)). This second “amended
complaint” therefore represents a repeated failure to
cure the deficiencies in LMS's first “amended
complaint”: once again, it contains responsive
arguments to a defensive motion instead of simply stating
factual allegations in the manner required by the Federal
Rules of Civil Procedure. LMS's repeated failure to file
a valid pleading is a substantial reason for denying leave to
amend. Because the Court denies LMS's motion for leave,
LMS's live pleading is its original complaint, to which
the Bank's motion pertains.
The Bank's Motion to Dismiss
the Bank is not explicit about the rule under which it seeks
dismissal, the substance of its motion implies that it seeks
to dismiss LMS's complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). (See Mot. Dismiss, Dkt.
10, at 18 (arguing that the Tunisian court order is not
enforceable by this Court “under any conceivable
theory”)). Given LMS's failure to timely respond,
the Court may consider the Bank's motion to be unopposed.
See Loc. R. W. D. Tex. CV-7(e)(2) (requiring an
opposing party to respond to a dispositive motion within 14
days and allowing the district court to grant a motion as
unopposed if no timely response is filed). However, the Court
acknowledges the Fifth Circuit's reluctance to dispose of
a cause of action simply for failure to comply with a
response deadline imposed by the local rules. See Johnson
v. Pettiford, 442 ...