Summary
denying summary judgment motion after filing of amended complaint even though there may "be no meaningful distinction between the original and the amended complaint, at least insofar as defendants frame their summary judgment arguments," because "[t]he court is not free to speculate in that regard"
Summary of this case from Crime, Justice & America, Inc. v. JonesOpinion
No. CIV 06-2747 PHX RCB.
September 9, 2008
ORDER
Currently pending before the court is a motion for summary judgment by defendants Connecticut General Life Insurance Company and John Hancock Life Insurance Company (doc. 22) and their related motion to strike plaintiff's statement of facts (doc. 29). Finding oral argument unnecessary, the court denies defendants' requests in that regard.
Background
When defendants filed their original motion to dismiss, as the parties are well aware, there was some confusion as to which complaint that motion was directed — the original complaint filed on September 5, 2006, in the Superior Court of Arizona, Maricopa County, Arizona, or the Amended Complaint filed in that same court on October 20, 2006. See Williams v. Connecticut General Life Ins., Co., 2007 WL 1839710 (D.Ariz. June 26, 2007). As will be more fully explained below, there is similar confusion surrounding the pending motions. Some procedural context is necessary to resolve the issue of which is the operative complaint for purposes of the pending defense motions.
When confronted with defendants' initial motion to dismiss, because the record was unclear as to the operative complaint, the court ordered defendants to clarify the state of the record. Id. at *2. Defendants did that by filing an affidavit from their counsel averring that prior to removal, on October 17, 2006, they were served with the original complaint. Affidavit of John C. West (doc. 12) at 2:3-4, ¶ 3. Attorney West further averred that defendants were not served with the amended complaint, however, until November 17, 2006 — eight days after removal. See id. at 2, ¶¶ 6 and 7.
After that clarification, to resolve defendants' motion to dismiss, the court looked to the original complaint, attached to their Notice of Removal. See Doc. 13 at 2. The court then held "that to the extent [the] original complaint asserts state law claims relating to and arising from an employee benefit plan, those claims are preempted under ERISA." Id. at 3:17-19. Shortly thereafter, defendants filed their answer, explicitly stating that they were "answer[ing] the remaining allegations of Plaintiff's Original Complaint, which was filed on September 5, 2006." Ans. (doc. 16) at 1 (emphasis added). Similarly, in their "Separate Statement of facts in Support of [their] Motion for Summary Judgment[,]" defendants' cites to the complaint directly correspond to allegations in the original complaint. See, e.g., DSOF (doc. 23) at 1, ¶ 1:23-24; and at 2, ¶ 9. Thus, although defendants recognize that the amended complaint was filed and served, their motions are directed to the original complaint. As more fully discussed below, defendants' reliance upon the original complaint is a fundamental flaw which the court cannot overlook.
Discussion
I. Summary Judgment Motion
"`It is hornbook law that an amended pleading supersedes the original, the latter being treated thereafter as non-existent. . . . Once amended, the original no longer performs any function as a pleading[.]'" Doe v. Unocal Corp., 27 F.Supp.2d 1174, 1180 (C.D.Cal. 1998) (quoting Bullen v. De Bretteville, 239 F.3d 824, 833 (9th Cir. 1956)) (other citations omitted), aff'd and adopted on other grounds, 248 F.3d 915 (9th Cir. 2001). Or, more recently, as the First Circuit colorfully pronounced inConnectu LLC v. Zuckerberg, 522 F.3d 82 (1st Cir. 2008), "the earlier complaint is a dead letter and no longer performs any function in the case." Id. at 91 (internal quotation marks and citation omitted). The point of supersedure occurs "when the amended complaint is properly served, not when it is filed." Doe, 27 F.Supp.2d at 1180 (footnote omitted) (emphasis added) (citingInternational Controls Corp. v. Vesco, 556 F.2d 665, 669 (2d Cir. 1977)).
For that reason, along with the settled rule that "[i]n determining the existence of removal jurisdiction based upon a federal question, [the federal court] must look to the complaint as of the time the removal petition was filed[,]" Williams, 2007 WL 1839710, at *1 (internal quotation marks and citations omitted), when defendants brought their motion to dismiss, the operative pleading was the original complaint. See Momans v. St. John's Northwestern Military Academy, Inc., 2000 WL 33976543, at *2 (N.D.Ill. April 20, 2000) (in evaluating defendants' fraudulent joinder argument, court looked to the first amended complaint, rather than the second amended complaint, because the latter was filed in state court prior to removal, but not served on defendants until after removal). In light of the foregoing, because defendants readily admit that they were served with the Amended Complaint on November 17, 2006, at that point, the original complaint became "non-existent." Necessarily then, the court must deny as moot defendants' summary judgment motion directed at that original complaint. See Spokane County Legal Services, Inc. v. Legal Services Corporation, 433 F.Supp. 278, 280 (E.D.Wa. 1977) (denying summary judgment motion where issues raised therein were moot in light of amended complaint; accord Lopez v. Metropolitan Government of Nashville, 2008 WL 913085, at *2 (M.D.Tenn. April 1, 2008) (declining to consider previously filed dispositive motions where plaintiffs had filed a third amended complaint, which superseded the original complaint). Indeed, given the filing and service of an amended complaint in this action, any ruling pertaining to the original complaint would be a nullity. See Miller v. American Export Lines, Inc., 313 F.2d 218-19 (2d Cir. 1963) (grant of summary judgment after service of amended complaint, but before district court was aware of filing of such complaint, was a nullity because that court did not have the amended complaint before it). Perhaps, at the end of the day, there will be no meaningful distinction between the original and the amended complaint, at least insofar as defendants frame their summary judgment arguments. The court is not free to speculate in that regard, however.
II. Motion to Strike
Likewise, the court denies defendants' motion to strike. First, this motion has been rendered moot by the court's ruling on the related summary judgment motion. Even if this motion was not moot, LRCiv 7.2(m)(2) precludes it, at least in part.
Effective December 1, 2006, LRCiv 7.2 was amended to add subsection (m), specifically addressing "Motions to Strike." That Rule plainly states in relevant part:
An objection to the admission of evidence offered in . . . opposition to a motion must be presented in the objecting party's responsive or reply memorandum (or, if the underlying motion is a motion for summary judgment, in the party's response to another party's separate statement of material facts) and not in a separate motion to strike or other separate filing.
LRCiv 7.2(m)(2) emphasis added). Defendants are moving to strike Plaintiff's Statement of Facts ("PSOF") because allegedly: (1) she has failed to timely make her initial Rule 26 disclosures; (2) the attached exhibits are not properly authenticated; (3) the attached exhibits contain hearsay; and (4) PSOF is irrelevant. Although LRCiv 7.2(m)(1) allows a motion to strike on the first ground, subsection (2) of that Rule, as just recited, precludes the remaining three bases for this defense motion.
The court hereby ORDERS that:
(1) the motion by defendants Connecticut General Life Insurance Company and John Hancock Life Insurance Company (doc. 22) is DENIED as moot; and
(2) the motion by defendants Connecticut General Life Insurance Company and John Hancock Life Insurance Company (doc. 29) is DENIED as moot.