The Travelers Indemnity Company of America et al v. W.S. Newell, Inc. et al

Filing 71

ORDER granting 70 Motion to Amend Answer; Defendant Hoar Construction is directed to file an Amended Answer, which sets out in full its allegations and counterclaims. Signed by Judge Kristi K. DuBose on 5/2/2012. (cmj)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION THE TRAVELERS INDEMNITY COMPANY OF AMERICA, Plaintiff, vs. W.S. NEWELL, INC., et al., Defendants. ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 11-00481-KD-N ORDER This matter is before the Court on Defendant Hoar Construction, LLC’s “Unopposed Motion for Leave to File Amended Answer,” to add the affirmative defense of voluntary payment (Doc. 70). It is ORDERED that Defendant Hoar Construction, LLC’s unopposed Motion (Doc. 70) is GRANTED. Accordingly, Defendant Hoar Construction, LLC is DIRECTED to file an Amended Answer1 which sets out in full -- rather than by adopting and/or incorporating by reference – its allegations and counterclaim(s).2 DONE and ORDERED this the 2nd day of May 2012. /s/ Kristi K. DuBose KRISTI K. DUBOSE UNITED STATES DISTRICT JUDGE 1 To replace the proposed Amended Answer (Doc. 70-2) which simply “incorporates by reference” Defendant Hoar Construction, LLC’s counterclaim against Plaintiff. (Id. at 2 at note 1). 2 See, e.g., Pintando v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (stating that “[a]s a general matter, ‘[a]n amended pleading supersedes the former pleading; the original pleading is abandoned by the amendment, and is no longer a part of the pleader's averments against his adversary[]’” (citing Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir. 2006)); Land Clearing Co., LLC v. Navistar, Inc., Slip Copy, 2012 WL 206171, *1 at note 2 (S.D. Ala. Jan. 24, 2012) (finding that “the Amended Complaint was not an integrated, standalone pleading…it only set forth plaintiff's new claims and allegations…without reciting the previously alleged facts and causes of action from the original Complaint…[It] expressly ‘adopt[ed] and realleg[ed] all claims, demands and averments as are set forth in the original Complaint.’...More careful pleading by plaintiff--and adherence to the best practice of filing all-inclusive amended pleadings rather than piecemeal amended pleadings that incorporate by reference (rather than re-alleging) large swaths of earlier filings--would have alleviated…confusion[]”); and Security Life of Denver Ins. Co. v. Shah, Slip Copy, 2012 WL 1099844, *1 (S.D. Ga. Mar. 30, 2012) (specifying that “[t]he Court will not accept any filing…that incorporates by reference any factual allegation or argument contained in any documents already filed…Any further motions or responses must be standalone filings that independently contain all the factual allegations and arguments that the filing party wishes the Court to consider[]”). 1

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