Tatum v. Doctor's Associates, Inc. et al

Filing 11

ORDER AND REASON DENYING AS MOOT 6 Motion to Dismiss. Signed by Judge Ivan L.R. Lemelle on 2/26/2015. (my)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THAD TATUM

CIVIL ACTION

VERSUS

NO. 14-2980

DOCTOR’S ASSOCIATES INC.,
KOSTMAYER MORTGAGE CORPORATION

SECTION "B"(1)

ORDER AND REASONS
Before

the

Court

is

a

Motion

to

Dismiss

Plaintiff’s

Complaint by Defendant, Doctor’s Associates, Inc. (“DAI”).1 DAI
moves

the

arising

Court

under

to

the

dismiss
Americans

Plaintiff,
with

Thad

Tatum’s

Disabilities

Act,

claims
because

Plaintiff’s claims against it are “premised upon an incorrect
assumption that DAI is the lessee and operator of the property
located

at

2100-2114

Veterans

Boulevard,

Metairie,

Louisiana

70005 (“Property”).”2
Plaintiff has filed a first Amended Complaint, as well as
an opposition to the motion, arguing that the amended pleading,
which supersedes the original complaint, moots the motion to
dismiss.3 Plaintiff explains that it filed the amended complaint
in accordance with Federal Rule of Civil Procedure 15(a)(1)(B).4
Plaintiff cites to cases such as Purkey, v. Marberry, 385 Fed.

1

Rec. Doc. No. 6.
Rec. Doc. No. 6 at 1.
3
Rec. Doc. No. 9 at 1-2.
4
Rec. Doc. No. 9 at 1.
2

1

App’x. 575 (7th Cir. 2010), to support the argument that the
motion to dismiss should be dismissed as moot.5
A party may amend its pleading once as a matter of course
within 21 days after service of a motion under Rule 12(b). Fed.
R. Civ. P. 15(a)(1)(B). Defendant’s Rule 12(b) motion was filed
February

13,

2015,

and

Plaintiff

amended

the

pleadings

on

February 23, 2015. Therefore, Plaintiff has permissibly amended
its pleadings.
In the amended complaint, Plaintiff alleges DAI controls
modifications to the Property, and agreed to retain that control
pursuant to a Settlement Agreement with the United States.6 In
the procedural posture of a motion to dismiss, a district court
must accept the uncontroverted allegations in the plaintiff’s
complaint

as

true

and

resolve

any

factual

conflicts

in

the

complaint.

The

plaintiff’s favor.
Here,

DAI’s

arguments

attack

the

initial

pleading has been superseded by an amended complaint, and it is
upon these pleadings that Plaintiff must make a prima facie
showing of a claim under ADA. The amended complaint contains
different and additional factual allegations regarding whether
DAI may be held liable for the claims present in this case. If
Defendant

wishes

to

attack

the

sufficiency

of

the

amended

complaint, it must file another motion specifically addressing
5
6

Rec. Doc. No. 9 at 1.
Rec. Doc. No. 8 at 3-4.
2

the

amended

complaint.

Therefore,

IT

IS

HEREBY

ORDERED

that

Defendant’s Motion to Dismiss is DENIED as MOOT.

New Orleans, Louisiana, this 26th day of February, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

3