United States District Court, N.D. Texas, Amarillo Division
SUPPLEMENTAL FINDINGS, CONCLUSIONS, AND
RECOMMENDATION TO DENY WITHOUT PREJUDICE AS MOOT DEFENDANT
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA'S MOTION TO
DISMISS ALBRACHT'S FIRST AMENDED COMPLAINT
ANN RENO UNITED STATES MAGISTRATE JUDGE
Court previously issued a Findings, Conclusions, and
Recommendation (ECF 20) on Defendant Indemnity Insurance
Company of North America's (“IIC”) Motion to
Dismiss Plaintiff Nicholas Albracht's
(“Albracht”) First Amended Complaint. (ECF 10).
The Court deems it appropriate to issue these Supplemental
Findings, Conclusions, and Recommendation on the Motion to
Dismiss in light of a subsequently-filed amended pleading.
For the reasons explained below, the Court recommends that
the Motion to Dismiss be DENIED without prejudice as moot.
November 20, 2019, the Court issued its Findings,
Conclusions, and Recommendation to GRANT IIC's Motion to
Dismiss, in which the Court gave Albracht the opportunity to
either: (1) use the 14-day period for filing objections to
file an amended complaint; or (2) file objections to the
Findings, Conclusions, and Recommendation. (ECF 20 at 10).
Albracht filed his Second Amended Complaint on November 26,
2019. (ECF 21).
in the Northern District of Texas generally adhere to the
school of thought that an amended complaint, which supersedes
the original complaint as the operative live pleading,
renders moot a motion to dismiss the original
complaint.” Garcia v. City of Amarillo, Texas,
No. 2:18-CV-95-D-BR, 2018 WL 6272461, at *1 (N.D. Tex. Oct.
29, 2018), findings, conclusions, and recommendation
adopted, No. 2:18-CV-095-D, 2018 WL 6268222 (N.D. Tex.
Nov. 30, 2018). “However, a motion to dismiss that
attacks the original complaint for deficiencies that persist
in the amended complaint should not necessarily always be
denied as moot. Rather, the court has the discretion to apply
the original motion to dismiss to the amended
complaint.” 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).
carefully reviewed Albracht's Second Amended Complaint
(ECF 21), the Court concludes that IIC's Motion to
Dismiss (ECF 10) should be DENIED without prejudice as moot.
above reasons, it is the RECOMMENDATION of the United States
Magistrate Judge to the United States District Judge that
IIC's Motion to Dismiss (ECF 10) be DENIED without
prejudice as moot. It is further RECOMMENDED that the
District Judge remand the November 20, 2019 Findings,
Conclusions, and Recommendation (ECF 20) to the undersigned
to be withdrawn by her.
Court notes that the parties may, if they so choose, file a
joint notice waiving their right to object to these
Supplemental Findings, Conclusions, and Recommendation.
United States District Clerk is directed to send a copy of
these Supplemental Findings, Conclusions, and Recommendation
to each party by the most efficient means available.
NOTICE OF RIGHT TO OBJECT *
party may object to these proposed findings, conclusions, and
recommendation. In the event parties wish to object, they are
hereby NOTIFIED that the deadline for filing objections is
fourteen (14) days from the date of filing as indicated by
the “entered” date directly above the signature
line. Service is complete upon mailing, Fed.R.Civ.P.
5(b)(2)(C), or transmission by electronic means, Fed.R.Civ.P.
5(b)(2)(E). Any objections must be filed on or before the
fourteenth (14th) day after this recommendation ...