MW Builders, Inc. v. Gemini Insurance Company

Filing 36

ORDER dismissing without prejudice 10 Motion to Dismiss for Failure to State a Claim; dismissing without prejudice 24 Motion to Dismiss for Failure to State a Claim. IT IS FURTHER ORDERED that plaintiff file an updated amended complaint on or before September 29, 2017. Signed by District Judge Carlos Murguia on 9/12/17. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MW BUILDERS, INC.,
Plaintiff,
v.

Case No. 17-2275

GEMINI INSURANCE COMPANY,
Defendant.

ORDER
This matter comes before the court on defendant Gemini Insurance Company’s Motions to
Dismiss (Docs. 10 & 24). After reviewing the pleadings in this case, the court finds plaintiff’s
amended complaint is insufficient. In the amended complaint, plaintiff states it “adopts and re-avers
the allegations of its Complaint, as if copied herein in extenso,” and then lists each paragraph to be
amended and the contents of each amendment. The court recognizes that Rule 10(c) of the Federal
Rules of Civil Procedure allows parties to adopt by reference statements from prior pleadings.
However, the “safer practice is to introduce an amended pleading that is complete in itself, rather than
one that refers to the prior pleading or seeks to incorporate a portion of it.” § 1476 Effect of an
Amended Pleading, 6 Fed. Prac. & Proc. Civ. § 1476 (3d ed.).
While the court appreciates plaintiff pointing out the specific amendments to the original
complaint, it is not the court’s job to piece together the amendments in conjunction with the original
complaint in order to determine what claims remain and what arguments are still relevant for purposes
of ruling on the motions to dismiss.

Plaintiff is directed to refile its amended complaint and

incorporate both the remaining contents of the original complaint and the amendments in one pleading.

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Defendant may then file a motion to dismiss the amended complaint and must address all of its
grounds for dismissal in one motion.
IT IS THEREFORE ORDERED that plaintiff file an updated amended complaint on or
before September 29, 2017.
IT IS FURTHER ORDERED that defendant’s Motions to Dismiss (Docs. 10 & 24) are
dismissed without prejudice.

Dated September 12, 2017, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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