Moore v. Santander Consumer USA Inc.

Filing 12

MEMORANDUM OPINION & ORDER denying 7 Motion to Dismiss for Failure to State a Claim; granting 8 Motion for Leave to File Amended Complaint; Telephonic Scheduling Conference set for 4/6/2016 at 10:00 AM before Senior Judge Thomas B. Russell.. Signed by Senior Judge Thomas B. Russell on 3/31/2016. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:15-CV-00222-TBR
LORETTA MOORE, individually and as
attorney-in-fact for Elmo Moore,

Plaintiffs,

v.
SANTANDER CONSUMER USA INC.,

Defendant.

MEMORANDUM OPINION AND ORDER
Loretta and Elmo Moore filed a five-count complaint against Santander Consumer
USA Inc. for tortious conduct relating to the collection of an automotive loan. See R. 1 at
4–6, ¶¶ 28–49 (Complaint). Thereafter, Santander filed a motion to dismiss the Moores’
complaint for failure to state a claim upon which relief can be granted. See R. 7 at 1
(Motion to Dismiss). While Santander’s motion remained pending, the Moores asked to
file an amended complaint, abandoning two of the original counts and supplementing the
remaining three. See R. 8 at 1 (Motion for Leave to File Amended Complaint); see also
R. 8-1 at 1–7, ¶¶ 1–49 (First Amended Complaint).
Because the Moores’ sought leave to file an amended complaint while
Santander’s motion to dismiss was outstanding, the Court must first decide whether to
grant leave to amend. See Ellison v. Ford Motor Co., 847 F.2d 297, 300 (6th Cir. 1988);
Marks v. Shell Oil Co., 830 F.2d 68, 70 (6th Cir. 1987). Under Federal Rule of Civil
Procedure 15(a)(2), the Court should freely allow a party to amend its pleading when
justice so requires. Leave to amend is liberally granted, except where there is “undue
delay in filing, lack of notice to the opposing party, bad faith by the moving party,
repeated failure to cure deficiencies by previous amendments, undue prejudice to the

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opposing party, or futility of the amendment.” Brumbalough v. Camelot Care Ctrs., Inc.,
427 F.3d 996, 1001 (6th Cir. 2005) (citing Coe v. Bell, 161 F.3d 320, 341–42 (6th Cir.
1998)); see also Foman v. Davis, 371 U.S. 178, 182 (1962). Ultimately, the decision to
grant or deny leave “is committed to [this Court’s] sound discretion.” Moore v. City of
Paducah, 790 F.3d 557, 559 (6th Cir. 1989); see also Ruschel v. Nestlé Holdings, Inc., 89
F. App’x 518, 521 (6th Cir. 2004).
Here, there has been no showing that the Moores either unduly delayed before
asking to amend, or acted in bad faith.

While Santander vaguely asserts that “the

proposed amendment would be futile,” R. 10 at 2 (Reply in Support of Motion to Dismiss
and Response to Motion for Leave to File Amended Complaint), it does not develop that
argument further, and so the Court declines to address it. See Kuhn v. Washtenaw Cty.,
709 F.3d 612, 624–24 (6th Cir. 2013) (holding “arguments averted to in only a
perfunctory manner” are waived) (citing Caudill v. Hollan, 431 F.3d 900, 915 n.3 (6th
Cir. 2005))); Gen. Star Nat’l Ins. Co. v. Administratia Asigurarilor de Stat, 289 F.3d 434,
441 (6th Cir. 2002) (same). Nor has Santander explained why it would be unduly
prejudiced by the proposed amendment. Accordingly, the Court will grant the Moores
leave to file an amended complaint.
Because the Moores amended complaint supersedes the original complaint,
Santander’s motion to dismiss the original complaint is moot. See Ky. Press Ass’n, Inc.
v. Kentucky, 355 F. Supp. 2d 853, 857 (E.D. Ky. 2005) (citing Parry v. Mohawk Motors
of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000)); Glass v. Kellogg Co., 252 F.R.D. 367,
368 (W.D. Mich. 2008); see also Othen v. Ann Arbor Sch. Bd., 699 F.2d 309, 311 (6th
Cir. 1983) (“It is clear that the amended complaint superseded the original complaint.”).

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Once docketed, Santander is free to move to dismiss the amended complaint. The Court
makes no judgment as to the merits of such a motion.
IT IS HEREBY ORDERED that the Moores’ Motion for Leave to File First
Amended Complaint (R. 8) is GRANTED. The Clerk of the Court is DIRECTED to
docket the attached First Amended Complaint (R. 8-1).
IT IS FURTHER ORDERED that Santander Consumer USA Inc.’s Motion to
Dismiss (R. 7) is DENIED AS MOOT.
IT IS FURTHER ORDERED that a Telephonic Scheduling Conference is SET
for April 6, 2016, at 10:00 a.m. CST. The Court shall place the call.
IT IS SO ORDERED.
Date:

March 31, 2016

cc:

Counsel of Record

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