United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER
K. PULLIAM UNITED STATES DISTRICT JUDGE.
Court has under consideration a Motion to Dismiss (ECF No.
18) filed by third-party defendants Arnold A. Cavzos and
Arnold A. Cavazos Insurance Company on August 15, 2019, and a
Motion to Strike and Motion for Default Judgment (ECF No. 19)
filed by Defendant Edward Flores d/b/a Flores Tire Shop, Inc.
(“Flores”) on August 28, 2019. In response to
the motion to dismiss, Defendant Flores filed a First Amended
Third Party Complaint (ECF No. 20) and a responsive brief
(ECF No. 21). No. one has filed any additional briefing
regarding the motion to strike or for default judgment, but
the third-party defendants sought and obtained an extension
of time to file their motion to dismiss on or before August
15, 2019. See ECF No. 22; Text Order Granting ECF
No. 22. The motions are ripe for ruling.
third-party defendants assert two grounds for dismissal under
Fed.R.Civ.P. 12(b)(6): (1) failure to state a claim and (2)
untimeliness under the applicable statute of limitations.
Through the motion to strike, Flores seeks to strike the
motion to dismiss as untimely. And according to the
motion's title, Flores also seeks default judgment even
though the body of the motion does not address default
judgment. In an abundance of caution, the Court proceeds as
though Flores indeed seeks default judgment.
Flores motions are easily resolved. First, Flores states no
rule or other basis that would permit the Court to strike a
motion as untimely. Rule 12(f) of the Federal Rules of Civil
Procedure is typically invoked for motions to strike. But
that rule has no applicability regarding striking a motion.
See Brown v. Bridges, No. 12-CV-4947-P, 2015 WL
11121361, at *2 (N.D. Tex. Jan. 30, 2015), modified in
part on other grounds, 2015 WL 12532137 (N.D. Tex. June
22, 2015). “Filing a motion to strike in response to a
motion is not a reasonable substitute for filing a
response.” Id. Furthermore, “[f]iling a
motion to strike instead of a response to a motion merely
serves to cause unnecessary delay and increase the cost of
litigation.” Id. While the Court's
inherent powers may provide authority to strike a motion,
“courts use their inherent powers cautiously and
‘with great restraint.'” Id. at *3
(quoting Toon v. Wackenhut Corr. Corp., 250 F.3d
950, 952 (5th Cir. 2001)). To the extent its inherent powers
permit striking a motion, the Court declines to do so. The
untimeliness argument presented in the motion to strike is
better suited as an argument for denying the motion to
dismiss rather than striking it. And that argument
necessarily fails because the Court has granted the
third-party defendants an extension of time to file their
motion on or before August 15, 2019, the date they filed
their motion. See ECF No. 22; Text Order Granting
ECF No. 22. This granted extension eliminates any current
basis for a motion for default judgment against the
third-party defendants. For these reasons, neither motion
filed by Flores has merit.
the motion to dismiss has survived the motion to strike, it
likewise fails. First, as permitted by Fed.R.Civ.P. 15(a),
Flores filed an amended third-party complaint within
twenty-one days of the motion to dismiss. This amendment
“supersedes the original [pleading] and renders it of
no legal effect.” King v. Dogan, 31 F.3d 344,
346 (5th Cir. 1994) (per curiam) (stating that general rule).
Following the filing of an amended pleading, courts may deem
moot a motion seeking to dismiss the pre-amendment pleading.
See Tipps v. McCraw, No. SA-12-CV-00766-DAE, 2013 WL
5929705, at *2 (W.D. Tex. Nov. 1, 2013). Under this general
rule, the Court has discretion to summarily find the entire
motion to dismiss moot.
circumstances may exist where the better course is to address
the motion despite the subsequent amendment. Rule 1 of the
Federal Rules of Civil Procedure directs the federal courts
and litigants to construe, administer, and employ the federal
rules “to secure the just, speedy, and inexpensive
determination of every action and proceeding.” Given
this overarching principle, courts retain discretion to
address a motion to dismiss as though it had been asserted
against the amended pleading. An amendment does not eliminate
a court's discretion to compare the pleadings to see
whether the changes are material to resolution of the motion.
Of course, neither Rule 1 nor any other rule mandates that a
court conduct such comparison.
case, Flores has responded to the motion on the merits
despite also filing the amended third-party complaint. Such
response on the merits favors not finding the motion moot.
Despite the amended pleading, Flores essentially focuses on
the allegations in the pre-amended pleading. The third-party
defendants have neither filed a reply to that response nor
withdrawn their motion. Nor have they moved to dismiss the
amended pleading. It thus appears that they stand by their
original motion to dismiss. This lack of action on their part
at least suggests that they still want a ruling on their
other hand, the amendment by Flores also materially changed
the third-party complaint in response to the motion to
dismiss. The amended third-party complaint drops other
previously named third-party defendants from the case, alters
various language that formerly dealt with the dropped
parties, adds language regarding equitable tolling of the
statute of limitations, and makes other various changes.
Compare ECF No. 9 with ECF No. 20. While
these changes are material, they do not affect the
Court's ability to resolve the pending motion as if
movants assert it against the amended pleading.
the motion to dismiss in that light, the Court denies it.
With the allegations regarding equitable tolling, movants
have no basis to argue that the third-party complaint is
untimely on its face. Similarly, omitting the other
third-party defendants clarifies the allegations against the
movants. The Court finds that the amended third-party
complaint satisfies the well-established standards for
stating a claim under Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). It also finds that the
amended pleading satisfies the pleading requirements of
Fed.R.Civ.P. 9(b) for the fraud allegations.
foregoing reasons, the Court DENIES the
Motion to Dismiss (ECF No. 18) and DENIES
the Motion to Strike and Motion for Default Judgment (ECF No.
Because the parties have used
cumbersome and somewhat confusing titles for their motions,
the Court has shortened ...