“If some of the 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.”
How later courts described this case
- “If some of the 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.”
- “As the amended complaint has superseded the original, defendant’s motion to dismiss has become moot.”
- “‘When a plaintiff amends its complaint while a motion to dismiss is pending’ the court may ‘den[y] the motion as moot [or] consider[ ] the merits of the motion in light of the amended complaint.’”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WHALE CAPITAL, L.P., CIVIL ACTION
VERSUS CASE NO. 22-2570
CHRISTOPHER RIDGEWAY et al. SECTION: “G”
ORDER
Before the Court is Defendants’ Christopher M. Ridgeway, Stephanie S. Ridgeway, and
FS Properties of Florida, LLC (collectively, “Defendants”) “Motion to Dismiss for Failure to State
a Claim Pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6).”1 Plaintiff Whale Capital, L.P. (“Whale”)
alleges that Defendants breached their suretyship obligation to Whale and that Defendant
Christopher M. Ridgeway (“Ridgeway”) deceived Whale into making loans to their joint venture
business through misrepresentations on the business’s operations.2
Whale avers that this dispute “arises out of the bankruptcy of a diagnostic laboratory
company, Stone Clinical Laboratories (“SCL”)” ongoing in the United States Bankruptcy Court
for the Eastern District of Louisiana (the “Bankruptcy case”).3 Whale maintains that it is one of
the members of SCL and its largest creditor.4 The Bankruptcy Court confirmed a plan of
reorganization for SCL in the bankruptcy proceedings on February 3, 2023.5 Pursuant to the
1 Rec. Doc. 9.
2 Rec. Doc. 8 at 13.
3 Id. at 1.
4 Rec. Doc. 19 at 1.
5 Rec. Doc. 692, In re Stone Clinical Labs., LLC, Case No. 21-10923 (Bankr. E.D. La. Feb. 3, 2023).
1
Bankruptcy Court’s Order, Whale filed a motion for leave to supplement and amend its claims in
this matter on March 8, 2022.6
Courts vary in how they proceed when a plaintiff files an amended complaint while a Rule
12(b)(6) motion is still pending.7 Many district courts—including this Court—routinely deny as
moot motions to dismiss that are filed prior to an amendment of a complaint.8 Although courts
may address the merits of a motion to dismiss even after an amended complaint is filed, as a general
rule, “if applying the pending motion to the amended complaint would cause confusion or detract
from the efficient resolution of the issues, then it makes sense to require the defendant to file a
new motion specifically addressing the amended complaint.”9
The instant motion to dismiss argues that Whale lacks standing to object to or request
subordination of Defendant Ridgeway’s claims in the Bankruptcy Case, Whale’s fraud claims have
prescribed, and that Whale’s breach of a surety obligation claim is premature.10 Whale sought leave
6 Rec. Doc. 19.
7 1 Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary Rule 15.
8 See Athletic Training Innovations, LLC v. eTagz, inc., No. 12-2540, 2013 WL 360570, at *3 (E.D. La. 2013)
(Brown, J.); see also, e.g., Lee v. Ability Ins. Co., No. 12-17, 2012 WL 3186270, at *1 (S.D. Miss. 2012) (“The Court
finds that it would be impractical and unwise to proceed further on the Motion to Dismiss since it challenges the
original Complaint, which is no longer the operative pleading.”); Abb, Inc, v. Reed City Power Line Supply Co., 2007
WL 2713731, at *1 (W.D. Mich. 2007) (“Because the original complaint has been superseded and nullified, there is
no longer a live dispute about the propriety or merit of the claims asserted therein; therefore, any motion to dismiss
such claims is moot.”); Calloway v. Green Tree Servicing, LLC, 559 F. Supp. 2d 543, 546 (D. Del. 2009) (“As the
amended complaint has superseded the original, defendant’s motion to dismiss has become moot.”). But see Illiano v.
Mineola Union Free Sch. Dist., 585 F. Supp. 2d 341, 349 (E.D.N.Y. 2008) (“‘When a plaintiff amends its complaint
while a motion to dismiss is pending’ the court may ‘den[y] the motion as moot [or] consider[ ] the merits of the
motion in light of the amended complaint.’”) (quoting Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F.
Supp. 2d 376, 384 (D. Conn. 2008)); Patton Elec. Co., Inc, v. Rampart Air, Inc., 777 F. Supp. 704, 713 (N.D. Ind.
1991) (“If some of the 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.”) (quoting 6 Wright, Miller & Kane, Federal Practice and
Procedure, § 1476 at 556–58 (2d ed. 1990)).
9 1 Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary Rule 15.
10 Rec. Doc. 9-2 at 1–2.
2
to file a supplemental complaint for declaratory relief to “make this suit consistent with the Plan
of Reorganization” and moot some matters presently under consideration with Defendants’
pending Motion to Dismiss.!! The Magistrate Judge granted Whale leave to file its supplemental
and amended complaint on March 22, 2023. Therefore, the Court concludes that applying the
pending motion to the “First Supplemental and Second Amended Complaint” would cause
confusion and detract from the efficient resolution of the issues.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss'4 is MOOT.
NEW ORLEANS, LOUISIANA, this 29th day of March, 2023.
NANNETTE JQLIVETTE BROWN (ow
CHIEF JUDGE
UNITED STATES DISTRICT COURT
” Rec. Doc. 21.
© Rec. Doc. 22.
4 Rec. Doc. 9.