Duncan

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

XZANDER DUNCAN, )

)

Plaintiff, )

)

v. ) CASE NO. 2:25-cv-415-RAH

)

MID SOUTH WAFFLES, INC., )

d/b/a WAFFLE HOUSE #835, et )

al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

On April 5, 2023, Plaintiff Xzander Duncan was shot by an unknown

individual at approximately 2:00 a.m. at Waffle House #835 after picking up an order

of food from the restaurant’s to-go window. Waffle House #835 is owned by Mid-

South Waffles, Inc. (MSW).

On April 3, 2025, Duncan filed suit in the Circuit Court of Montgomery

County, Alabama against Waffle House, Inc., Mike Hassel, and various fictitious

party defendants. On May 6, 2025, Duncan filed a First Amended Complaint that

substituted MSW in the place of Waffle House, Inc. as a defendant. MSW then

removed the case to this Court, claiming diversity jurisdiction and the fraudulent

joinder of Hassel as a defendant.

On September 18, 2025, Duncan filed a Motion for Leave to Amend (doc. 12)

which sought leave to file a Second Amended Complaint. The proposed Second

Amended Complaint adds four new Alabama-based individual defendants—Paul

Leuthold, Tom Fritz, Kimberly Ornelas, and Joshua Johnson. MSW opposes the

motion.

On January 4, 2026, Hassel filed a Motion to Dismiss (doc. 24), claiming that

he has not been properly or timely served and that he has been fraudulently joined

in this action. Duncan also filed a Motion for Limited Jurisdictional Discovery (doc.

30) in which Duncan seeks discovery from MSW under the guise of determining the

identification of all of MSW’s employees and its general manager on the date of the

shooting incident. MSW opposes the motion.

For the foregoing reasons, Hassel’s motion is due to be granted, and Duncan’s

motions are due to be denied.

DISCUSSION

A. Hassel’s Motion to Dismiss

Hassel argues that he has not been properly or timely served with the operative

complaint. In particular, he states that he was served on December 12, 2025, with a

state court summons and the original state court complaint. But that state-court

pleading had already been superseded by the First Amended Complaint, the case had

been pending in federal court for over six months, and the attempted service occurred

long after the 90-day deadline. See Fed. R. Civ. P. 4(m), 12(b)(5). Duncan responds,

not by addressing the issue of whether Hassel has been properly or timely served

with the operative pleading, but by arguing that Hassel has notice of the lawsuit and

therefore that notice should be sufficient.

“As a general rule, an amended complaint supersedes and replaces the original

complaint unless the amendment specifically refers to or adopts the earlier

pleading.” Varnes v. Loc. 91, Glass Bottle Blowers Ass’n of U.S. & Canada, 674

F.2d 1365, 1370 n.6 (11th Cir. 1982). Once a court accepts the amended pleading,

“the original pleading is abandoned by the amendment, and is no longer a part of the

pleader’s averments against his adversary.” Pintando v. Miami–Dade Hous. Agency,

501 F.3d 1241, 1243 (11th Cir. 2007) (quotation omitted). Because an original

complaint is abandoned by amendment, “serving a superseded complaint with the

summons [is] not a proper service of process.” Phillips v. Murchison, 194 F. Supp.

620, 622 (S.D.N.Y. 1961); Gilles v. United States, 906 F.2d 1386, 1390 (10th Cir.

1990) (“[W]here an amended pleading supersedes the original complaint,

subsequent service of the superseded prior or original pleading is improper . . . .”

(internal quotation marks omitted)); Martin v. Salvatierra, 233 F.R.D. 630, 632

(S.D. Fla. 2005) (finding service of original complaint was deficient service because

original complaint was superseded by amended complaint at the time of service).

From all that appears, Duncan served Hassel with a state court summons and

a superseded state court complaint long after the 90-day period for obtaining proper

service on Hassel had expired. Duncan has not sought an extension of that deadline,

and has never served Hassel with a federal summons or the operative First Amended

Complaint. Duncan’s silence on these issues is telling. That Hassel may have notice

of the lawsuit does not relieve Duncan of his obligation to comply with the Federal

Rules of Civil Procedure. As the Eleventh Circuit has held, “[a] defendant’s actual

notice is not sufficient to cure defectively executed service.” Albra v. Advan, Inc.,

490 F.3d 826, 829 (11th Cir. 2007). Accordingly, Hassel’s motion to dismiss is due

to be granted. See Fed R. Civ. P. 4(m) (providing that, unless good cause is shown

for failure to perfect service within 90 days after filing the complaint, “the court—

on motion or on its own after notice to the plaintiff—must dismiss the action without

prejudice against that defendant or order that service be made within a specified

time”).

B. Duncan’s Motion for Leave to Amend

Duncan moves for leave to file a Second Amended Complaint, seeking to add

identical claims against four non-diverse individual defendants. MSW opposes the

motion, arguing that Duncan’s purpose in adding the new individual defendants is

to destroy diversity jurisdiction. MSW also argues that the amendment would be

futile because the proposed Second Amended Complaint fails to state a cause of

action against any of them. For support, MSW provides affidavits from each

individual in which they state they were not present on the evening in question, had

no advance knowledge of the shooting or criminal conduct, had no relationship or

knowledge of the shooter, and did not hire, train, or retain any employee who worked

at the restaurant location. As a result, MSW argues that Duncan has not plausibly

alleged that any of the individual defendants owed a duty to Duncan and that they

cannot be held liable under any of the causes of action asserted in the proposed

Second Amended Complaint.

On first glance, the Court agrees that the proposed Second Amended

Complaint fails to adequately make a plausible showing of a duty by any of the four

additional individual defendants and it appears that Duncan’s primary purpose is to

find a non-diverse defendant to sue. But the Court need not perform a deep dive into

the duty analysis because the proposed Second Amended Complaint constitutes a

classic shotgun complaint. It is rife with conclusory and vague allegations and

summarily asserts claims that broadly lump all four of them together. Indeed, there

is virtually no detailed allegations directed at any of them.

A court may deny a motion to file an amended complaint for futility “when

the complaint as amended would still be properly dismissed.” Coventry First, LLC

v. McCarty, 605 F.3d 865, 870 (11th Cir. 2010) (quoting Cockrell v. Sparks, 510

F.3d 1307, 1310 (11th Cir. 2007)). A “shotgun pleading” is an example of a type of

complaint which would be subject to dismissal. Edward v. BAC Home Loans

Servicing, L.P., 534 F. App’x 888, 891 (11th Cir. 2013). “The unifying characteristic

of all types of shotgun pleadings is that they fail to one degree or another, and in one

way or another, to give the defendants adequate notice of the claims against them

and the grounds upon which each claim rests.” Weiland v. Palm Beach Cnty.

Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015). The Eleventh Circuit has

identified four characteristics of classic shotgun pleadings. These are pleadings that:

(1) contain multiple counts where each adopts the allegations of all

preceding counts; (2) are filled with conclusory, vague, and immaterial

facts not obviously connected to any particular cause of action; (3) do

not separate each cause of action or claim into separate counts; or (4)

assert multiple claims against multiple defendants but do not specify

which defendant is responsible for which acts or omissions.

Brown v. Air Line Pilots Ass’n, 813 F. App’x 353, 355 (11th Cir. 2020) (cleaned up).

Here, the proposed Second Amended Complaint exhibits three characteristics

of a shotgun pleading. First, in each of the six counts in the proposed Second

Amended Complaint, Duncan adopts the factual allegations of all of the preceding

counts. Second, each count contains conclusory and vague statements. For example,

the proposed Second Amended Complaint summarily alleges that the “Defendants”

“acted with reckless disregard for the rights of safety of Plaintiff”; “consciously or

deliberately engaged in wantonness”; and “acted negligently and/or wantonly and

with reckless disregard for the safety of Plaintiff, in the hiring, training, and

supervision of staff at Waffle House #835,” all without providing any of the

necessary facts to support those conclusions against each proposed defendant. (Doc.

12-1 at 4–7.) Third, the proposed Second Amended Complaint does not specify

which of the Defendants are responsible for which actions—it broadly alleges that

all of the “Defendants” undertook identical acts or omissions. Rule 8 requires more

than these broad and conclusory statements. See, e.g., Magluta v. Samples, 256 F.3d

1282, 1284 (11th Cir. 2001) (“The complaint is replete with allegations that ‘the

defendants’ engaged in certain conduct, making no distinction among the fourteen

defendants charged, though geographic and temporal realities make plain that all of

the defendants could not have participated in every act complained of.”); Jackson v.

Bank of Am., N.A., 898 F.3d 1348, 1357 (11th Cir. 2018) (holding that complaint

was a shotgun pleading where it incorporated by reference all factual allegations into

each claim and “ma[de] it nearly impossible for Defendants and the Court to

determine with any certainty which factual allegations g[ave] rise to which claims

for relief”).

Because the proposed Second Amended Complaint is a classic shotgun

complaint, allowing it will be futile. Accordingly, Plaintiff’s Motion for Leave to

Amend is due to be denied.

C. Duncan’s Motion for Limited Jurisdictional Discovery

In his motion, Duncan seeks leave to conduct discovery to determine the

identity and domicile of MSW’s employees who were working at the time of the

shooting. The purpose is evident by the title of the motion—jurisdiction—that is, to

find a non-diverse party to sue to destroy diversity jurisdiction.

To remove a case from state court, a defendant must be able to demonstrate

that the requirements of federal subject matter jurisdiction are met at the time of

removal. Lowery v. Ala. Power Co., 483 F.3d 1184, 1217–18 (11th Cir. 2007).

Courts may allow limited jurisdictional discovery concerning the facts which bear

upon the court’s subject matter jurisdiction. Am. Civil Liberties Union of Fla., Inc.

v. City of Sarasota, 859 F.3d 1337, 1341 (11th Cir. 2017).

Duncan does not direct his discovery request to Hassel or his citizenship at

the time of removal. Instead, Duncan seeks merits-related discovery of all of MSW’s

employees at the time of the shooting so that he can add MSW employees as

defendants. Such merits-related discovery—which could be relevant to the ultimate

jurisdiction of this Court if such individuals are properly added as defendants at a

later date—is not pertinent to whether jurisdiction existed at the time of removal.

Had Duncan more narrowly focused his request specifically to the assertions made

by Hassel in his declaration (doc. 11-2), Duncan’s jurisdictional discovery request

would find more stable footing. But Duncan did not make that narrow request. Plus,

at this point, Duncan has not sought remand and Hassel will be dismissed from the

case. As such, there is no need for jurisdictional discovery specific to Hassel.

Therefore, Duncan’s Motion for Limited Jurisdictional Discovery is due to be

denied.

CONCLUSION

Accordingly, it is ORDERED as follows:

(1) Plaintiff's Motion for Leave to Amend (doc. 12) is DENIED without

prejudice;

(2) Defendant Mike Hassel’s Motion to Dismiss (doc. 24) is GRANTED;

(3) Plaintiff's Motion for Limited Jurisdictional Discovery (doc. 30) is

DENIED;

(4) Mike Hassel is DISMISSED, without prejudice, from this case as a

defendant;

(5) The fictitious defendants are hereby DISMISSED, as fictitious party

practice generally is not permitted under the Federal Rules of Civil Procedure;

(6) This case shall proceed against Defendant Mid-South Waffles, Inc.

under the First Amended Complaint; and,

(7) Plaintiff and Mid-South Waffles, Inc. SHALL file a report of the

parties’ planning meeting on or by February 20, 2026.

DONE and ORDERED on this the 6th day of February 2026.

CHIEF ED STATES DISTRICT JUDGE