# Duncan

> District Court, M.D. Alabama · February 6, 2026

URL: https://www.frixlaw.com/law-library/cases/11252446

## Case

- **Full name:** Xzander Duncan v. Mid South Waffles, Inc., d/b/a Waffle House #835, et al.
- **Court:** District Court, M.D. Alabama
- **Decided:** February 6, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11252446

## How later opinions describe it (automated extraction)

- finding service of original complaint was deficient service because original complaint was superseded by amended complaint at the time of service

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11252446. Public record. Not legal advice.