In the Matter of C. F. Bean L.L.C., as Owner Pro Hac Vice and Operator, and Bean Meridian L.L.C., as the Record Owner, of the Barge Bean 20, Official No. 627225, Praying for Exoneration from or Limitation of Liability
Filing
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ORDER Denying Suzuki Motor Corporation and Suzuki Motor of America, Inc.'s 169 Motion For Reconsideration or Clarification of Order Denying Motion to Dismiss. Signed by District Judge Halil S. Ozerden on October 31, 2014. (NM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
IN THE MATTER OF C.F. BEAN
§
L.L.C., AS OWNER PRO HAC
§
VICE AND OPERATOR, AND BEAN §
MERIDIAN L.C.C., AS THE RECORD §
OWNER, OF THE BARGE BEAN 20, §
OFFICIAL NO. 627225, PRAYING
§
FOR EXONERATION FROM OR
§
LIMITATION OF LIABILITY
§
CIVIL NO.: 1:13cv77-HSO-RHW
CONSOLIDATED WITH
JERRIE P. BARHANOVICH,
§
EXECUTRIX AND PERSONAL
§
REPRESENTATIVE OF THE
§
ESTATE OF MARK BARHANOVICH, §
DECEASED
§
§
v.
§
§
C.F. BEAN LLC AND ARCHER
§
WESTERN CONTRACTORS, LLC
§
§
v.
§
§
BOB’S MACHINE SHOP, INC.,
§
SUZUKI MOTOR CORP., SUZUKI
§
MOTOR OF AMERICA, INC.
§
PLAINTIFF
CIVIL NO. 1:13cv84-LG-JMR
DEFENDANTS/
THIRD PARTY PLAINTIFFS
THIRD PARTY DEFENDANTS
ORDER DENYING SUZUKI MOTOR CORPORATION AND SUZUKI
MOTOR OF AMERICA, INC.’S [169] MOTION FOR RECONSIDERATION
OR CLARIFICATION OF ORDER DENYING MOTION TO DISMISS
BEFORE THE COURT is the Motion For Reconsideration or Clarification of
Order Denying Motion to Dismiss [169] filed by Third-Party Defendants Suzuki
Motor Corporation (“SMC”) and Suzuki Motor of America, Inc. (“SMAI”). SMC and
SMAI’s Motion [169] is predicated upon the notion that the Third Party Complaint
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[69] filed on May 1, 2014, by C.F. Bean LLC and Bean Meridian, LLC (collectively,
“Bean”), and Archer Western Contractors, LLC (“Archer Western”), remains the
operative complaint in this case, despite Bean and Archer Western having filed a
Second Supplemental and Amended Third Party Complaint1 [163] on October 10,
2014. Having considered the Motion, the record, and relevant legal authorities, the
Court finds that SMC and SMAI’s present Motion [169] should be denied.
“An amended complaint supersedes the original complaint and renders it of
no legal effect unless the amended complaint specifically refers to and adopts or
incorporates by reference the earlier pleading.” King v. Dogan, 31 F.3d 344, 346
(5th Cir. 1994) (citing Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir.
1985)). In their First Amended and Supplemental Third Party Complaint [103]
filed on July 17, 2014, Bean and Archer Western specifically adopted and
incorporated by reference the earlier Third Party Complaint [69]. See First Am. and
Supplemental Third Party Compl. 2 [103] (“Bean and Archer incorporate and adopts
[sic] by reference all other paragraphs and allegations as set forth in the original
Third Party Complaint . . . .”). Regardless of how artfully Bean and Archer
Western may have attempted to draft the Second Supplemental and Amended
Third Party Complaint [163] filed on October 10, 2014, Bean and Archer Western
did not specifically “adopt or incorporate by reference” the original Third Party
Complaint into their current pleadings. Consequently, the original Third Party
Bean and Archer Western filed a First Amended and Supplemental Third Party Complaint
[103] on July 17, 2014.
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Complaint [69] was superseded when the Second Supplemental and Amended Third
Party Complaint [163] was filed on October 10, 2014.
To the extent SMC requests a determination as to the sufficiency of process
and of service of process of the earlier Third Party Complaint [69], which has now
been rendered “of no legal effect,” such a determination amounts to an advisory
opinion which the Court declines to issue. As the Court stated in its Order [156]
denying as moot SMC and SMAI’s prior Motion to Dismiss [107], SMC and SMAI
may reassert their arguments for dismissal, if necessary, once served with the
Second Supplemental and Amended Third Party Complaint [163]. Accordingly,
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion For
Reconsideration or Clarification of Order Denying Motion to Dismiss [169] filed by
SMC and SMAI is DENIED.
SO ORDERED AND ADJUDGED this the 31st day of October, 2014.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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