Headen et al v. Abundant Life Therapeutic Services Texas, LLC et al

Filing 13

ORDER entered MOOTING 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Pursuant to Rules 12(b)(6) and 9(b).(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA and,
THE STATE OF TEXAS, ex rel.
THOMAS HEADEN III,
Plaintiffs,
v.
ABUNDANT LIFE THERAPEUTIC
SERVICES TEXAS, LLC and
JOHN DOES (1–50) INCLUSIVE,
Defendants.

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September 24, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-18-773

ORDER
On March 12, 2018, qui tam relator Thomas Headen sued Abundant Life Therapeutic
Services and unidentified defendants, alleging violations of the False Claims Act, 31 U.S.C. § 3729
et seq., Anti-Kickback Statute, 42 U.S.C. § 1320a–7(b), and the Texas Medicaid Fraud Prevention
Act, Tex. Hum. Res. Code § 36.002. (Docket Entry No. 1). The United States declined to intervene
on May 31, 2018. (Docket Entry No. 6). On August 23, 2018, Abundant Life moved to dismiss
Headen’s complaint, arguing that Headen failed to satisfy Federal Rules of Civil Procedure 9(b) and
12(b)(6). (Docket Entry No. 10). On September 13, 2018, Headen filed an amended complaint and
again alleged violations of the False Claims Act, Anti-Kickback Statute, and the Texas Medicaid
Fraud Prevention Act.
The filing of an amended complaint supersedes the prior complaint. See King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994). “If an amended complaint does not incorporate the earlier pleading,
a court may deny as moot a motion to dismiss that was filed before the operative amended

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complaint.” Probado Techs. Corp. v. Smartnet, Inc., No. CIVA C-090349, 2010 WL 918573, at *1
(S.D. Tex. Mar. 12, 2010). But, “[a] motion to dismiss, which attacks the original complaint for
deficiencies that persist in the amended complaint,” need not be denied as moot in all
circumstances.” People’s Choice Home Loan, Inc. v. Mora, No. CIVA 3:06-CV-1709-G, 2007 WL
120006, at *2 (N.D. Tex. Jan. 18, 2007). “If some of the defects raised in the original motion remain
in the new pleading, the court simply may consider the motion as being addressed to the amended
pleading.” 6 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2018).
Headen’s amended complaint alleges more facts—and with greater particularity—than the
original complaint. Compare (Docket Entry No. 12), with (Docket Entry No. 1). The court finds
the motion to dismiss moot. Headen’s amended complaint is deemed filed as of today’s date.
Abundant Life may file a motion to dismiss that specifically addresses the amended complaint’s
claims and allegations no later than October 12, 2018. Headen must respond no later than 14 days
after Abundant Life’s Rule 12 motion is filed.
SIGNED on September 24, 2018, at Houston, Texas.

______________________________________
Lee H. Rosenthal
Chief United States District Judge

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