State of Texas v. EEOC et al

Filing 27

NOTICE of Intention to File Motion to Dismiss re: 24 Amended Complaint filed by Jacqueline Berrien, EEOC, Eric H Holder (Sandberg, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
STATE OF TEXAS,

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Plaintiff,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, et al.,
Defendants

Civil No. 5:13-CV-00255-C
ECF

NOTICE
The State of Texas amended its complaint after the Equal Employment Opportunity
Commission (EEOC) moved to dismiss the original pleading.
dismiss); Dckt. No. 24 (amended complaint).

Dckt. No. 15 (motion to

That same day, the State also filed an opposition

to the EEOC’s motion to dismiss, Dckt. No. 25 (Opp.), notwithstanding the fact that the amended
complaint superseded its predecessor (which was the target of the motion), see King v. Dogan,
31 F.3d 344, 346 (5th Cir.1994).

The State explained the decision to file an opposition in a

footnote, volunteering that it “construes EEOC’s motion to dismiss . . . to apply equally to the
[amended complaint].” Opp. at 1 n.1. While it may be that a defendant in this circumstance
can choose to have a court treat its motion to dismiss as if it were directed to the amended
complaint, 6 Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1476 (3d
ed. 2013 Supplement) (stating that a defendant might make such an election if it did not think
that the amended complaint cured the defects in the original complaint), that proposition is not
certain, see Dean v. Ford Motor Credit Co., 885 F.2d 300, 302 (5th Cir. 1989).

Notice - Page 1

In any case, the

choice belongs to the defendant, not the plaintiff.

If it were otherwise, a plaintiff could amend

its complaint in an effort to cure defects identified in the motion to dismiss, rely on the amended
complaint to oppose the motion, see, e.g., Opp. at 11, and then invoke this motion to dismiss
preclusion doctrine to prevent a defendant from addressing the new complaint.
course, is not the system that we have.

But this, of

Accordingly, because the State’s amended complaint

renders the original complaint a nullity, defendants submit this notice of their intention to file a
motion to dismiss addressed to the State’s amended complaint.

DATED this 25th Day of March, 2014

Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
SARAH R. SALDAÑA
United States Attorney
JOSHUA E. GARDNER
Assistant Director, Federal Programs
Branch
s/ Justin M. Sandberg
BRIAN G. KENNEDY (D.C. Bar No.
228726)
Senior Trial Counsel
JUSTIN M. SANDBERG (IL Bar No.
6278377)
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Mass. Ave. NW, Rm. 7302
Washington, D.C. 20001
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
Counsel for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that, on March 26, 2014, a true and correct copy of the foregoing was
served by CM/ECF on:
Jonathan F. Mitchell
Andrew Stephen Oldham
Arthur D’Andrea
Office of the Texas Attorney General
209 West 14th Street
P.O. Box 12548
Austin, Texas 70711-2548
s/ Justin M. Sandberg
JUSTIN M. SANDBERG
Trial Attorney
U.S. Department of Justice

Notice - Page 3