Breaud v. Cantrell

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ANNE W. BREAUD CIVIL ACTION

VERSUS NO. 24-1865

LATOYA W. CANTRELL, et al. SECTION: “G”(5)

ORDER AND REASONS

On July 26, 2024, Plaintiff Anne W. Breaud’s (“Breaud”) filed a Complaint in this Court

against Defendants Latoya W. Cantrell, the City of New Orleans, the New Orleans Police

Department, Clifton Davis II, Victor Grant, Leslie D. Guzman, Ryan St. Martin, and John/Jane

Does Numbers 1-5 (collectively, “Defendants”) for allegedly violating federal law, state law, and

her civil rights in retaliation for Breaud capturing and circulating two photographs of Mayor

Latoya W. Cantrell and New Orleans Police Officer Jeffrey Vappie at a restaurant together.1

Pending before the Court is Plaintiff’s Motion for Leave to File a First Amended

Complaint.2 Through the amended pleading, Plaintiff seeks to voluntarily dismiss three of the New

Orleans Police Officers previously named as defendants––Victor Gant, Leslie D. Guzman, and

Ryan St. Martin.3 Plaintiff also seeks to add a First Amendment retaliation claim and a claim for

violations of Public Records Laws.4

1 Rec. Doc. 1.

2 Rec. Doc. 41.

3 Rec. Doc. 41-4. The Court previously dismissed the claims against the New Orleans Police Department.

Rec. Doc. 21.

4 Rec. Doc. 41-4.

Defendants oppose the motion to amend, arguing that amendment would be futile because

Plaintiff does not address the alleged deficiencies Defendants identified in their pending Rule 12(c)

motion to dismiss.5 Defendants also argue that Plaintiff fails to state a claim for First Amendment

retaliation. Defendants do not address the Public Records Laws claim.

Federal Rule of Civil Procedure 15(a)(2) provides that a court should freely grant leave to

amend complaints “when justice so requires.”6 This case is still in the early stages. Plaintiff

recently received initial disclosures from Defendants. In light of the information received, Plaintiff

is seeking leave to amend the Complaint. Defendants have not shown that they will be prejudiced

by this filing, especially considering that Plaintiff is seeking to voluntarily dismiss three of the

originally named defendants. Therefore, the Court grants Plaintiff leave to file the First Amended

Complaint.

Courts vary in how they proceed when a plaintiff files an amended complaint while a Rule

12 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

5 Rec. Doc. 43.

6 Fed. R. Civ. Pro. R. 15(a).

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. Jan.

30, 2013) (Brown, J.); see also, e.g., Lee v. Ability Ins. Co., No. 12-17, 2012 WL 3186270, at *1 (S.D. Miss.

Aug. 3, 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. Sept. 18, 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,

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.”

Considering that the Amended Complaint removes certain individual defendants and adds

two claims, the Court concludes that it is more efficient for Defendants to refile a Motion to

Dismiss tailored to Plaintiff's First Amended Complaint. Accordingly,

IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File a First Amended

Complaint’? is GRANTED.

IT IS FURTHER ORDERED that Defendants’ Rule 12(c) Motion to Dismiss’! “and

Motion to Stay Discovery Pending Ruling on the Motion to Dismiss!” are DISMISSED AS

MOOT. Defendants are granted leave to file renewed motions tailored to the First Amended

Complaint within 14 days of this Order.

NEW ORLEANS, LOUISIANA, this 26th day of March, 2025.

NANNETTE JOLPVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

Miller & Kane, Federal Practice and Procedure, § 1476 at 556-58 (2d ed. 1990)).

° 1 Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary Rule 15.

Rec. Doc. 41.

" Rec. Doc. 26.

” Rec. Doc. 24.