Martinez et al v. Capital Bank N.A.
MEMORANDUM OPINION AND ORDER - For the reasons explained, the court concludes that the Amended Complaint was filed late without justification, does not comply with the court's Prior Order, and does not adequately plead Plaintiffs' alleged claims. Defendant Capital One, N.A.'s 15 MOTION to Strike and MOTION TO DISMISS Plaintiffs' Amended Petition is therefore GRANTED. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
Case 4:22-cv-02767 Document 17 Filed on 01/17/23 in TXSD Page 1 of 4
United States District Court
Southern District of Texas
January 17, 2023
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
RAQUEL VEGA MARTINEZ d/b/a
AIRLINE INSURANCE and HUGO VEGA, §
CAPITAL ONE, N.A.,
Nathan Ochsner, Clerk
CIVIL ACTION NO. H-22-2767
MEMORANDUM OPINION AND ORDER
Raquel Vega Martinez
("Martinez") d/b/a Airline Insurance
("Airline") and Hugo Vega (collectively, "Plaintiffs") filed this
action in the District Court of Harris County,
Plaintiffs' Amended Petition
Pending before the court is
("Defendant's Motion to Strike and
(Docket Entry No. 15).
For the reasons stated below,
Defendant's Motion to Strike and Dismiss will be granted.
Plaintiffs' Original Petition and Application for Temporary
Restraining Order ("Original Complaint"), Exhibit 2 to Petition for
Docket Entry No. 1-2,
For purposes of
identification all page numbers reference the pagination imprinted
at the top of the page by the court's Electronic Case Filing
Case 4:22-cv-02767 Document 17 Filed on 01/17/23 in TXSD Page 2 of 4
On November 18, 2022, the court issued a Memorandum Opinion
and Order (the "Prior Order") (Docket Entry No. 12), granting in
part and denying in part Defendant Capital One, N.A.'s Motion to
Dismiss Under Rule 12(b)( 6) ("Defendant's Prior Motion to Dismiss")
(Docket Entry No. 5).
The court held that Plaintiffs had failed to
adequately plead any of their claims and granted the Defendant's
Prior Motion to Dismiss on all but one claim.
Based on Plaintiff's
Response to Defendant Capital One, N.A.'s Motion to Dismiss Under
Plaintiffs had not pleaded their best case as to defamation and
The court gave Plaintiffs until December
2, 2022, to file an amended complaint properly pleading defamation
and/or business disparagement. On December 7, after inquiry by the
court, Plaintiffs acknowledged that they had not met the December
Plaintiffs asked for an extension until December 9.
Plaintiffs' Original Petition ("Amended Complaint") (Docket Entry
On December 15, 2022, Defendant filed its Motion to Strike and
Defendant argues that the "Plaintiffs disregarded the
Court's deadline, and then ignored their own unapproved deadline.
should be struck as
Defendant also argues that the Amended Complaint fails
to comply with the Prior Order's instructions.
Case 4:22-cv-02767 Document 17 Filed on 01/17/23 in TXSD Page 3 of 4
court only allowed Plaintiffs to amend to more adequately plead a
defamation or business disparagement claim.
reasserted all the claims in the Original Complaint.
also argues that even ignoring Plaintiffs' lateness and disregard
for the court's instructions, the Amended Complaint still fails to
adequately plead any of the alleged claims.
The court has reviewed its Prior Order, the Amended Complaint,
and Defendant's Motion to Strike and Dismiss.
filed a response. 2
Plaintiffs have not
Plaintiffs waited until days after the court's
deadline to ask for additional time to amend and did not even meet
their own suggested extension.
Plaintiffs have offered no reason
for the delay.
Prior Order concluded that
Plaintiffs had not pleaded their best case on one particular claim,
reasserted all the original claims.
Plaintiffs reasserted some claims with only minimal, superficial
The court has reviewed the substance of the Amended
Even if the court were to allow the late, noncomplying
amendment, it again fails to adequately plead the alleged claims.
For example, the Amended Complaint adds some information regarding
business disparagement, but it does not allege that the balance was
sufficient to cover the NSF charges.
Nor does it specify the
See Local Rules of the United States District Court for the
Southern District of Texas, Rule 7. 3 ("Opposed motions will be
submitted to the judge 21 days from filing without notice from the
clerk and without appearance by counsel.") and Rule 7.4 ("Failure
to respond will be taken as a representation of no opposition.").
Case 4:22-cv-02767 Document 17 Filed on 01/17/23 in TXSD Page 4 of 4
Commonwealth terminating its
relationship with Plaintiffs.
For the reasons explained above, the court concludes that the
Amended Complaint was filed late without justification, does not
comply with the court's Prior Order, and does not adequately plead
Plaintiffs' alleged claims.
Defendant Capital One, N.A.'s Motion
to Strike and Dismiss Plaintiffs' Amended Petition (Docket Entry
No. 15) is therefore GRANTED.
SIGNED at Houston, Texas, on this 17th day of January, 2023.
SENIOR UNITED STATES DISTRICT JUDGE
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