Martinez et al v. Capital Bank N.A.
Filing
17
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
ENTERED
January 17, 2023
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RAQUEL VEGA MARTINEZ d/b/a
§
AIRLINE INSURANCE and HUGO VEGA, §
§
Plaintiffs,
§
§
v.
§
§
CAPITAL ONE, N.A.,
§
§
Defendant.
§
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,
Capital One,
Defendant
N.A.
Capital
("Defendant"). 1
One,
N.A.'s
Plaintiffs' Amended Petition
Dismiss")
Texas,
against
Pending before the court is
Motion
to
Strike
and
Dismiss
("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.
1
Plaintiffs' Original Petition and Application for Temporary
Restraining Order ("Original Complaint"), Exhibit 2 to Petition for
Removal,
Docket Entry No. 1-2,
p. 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
("ECF") system.
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
Rule
12(b) (6)
(Docket
Entry
No.
6),
the
court believed
that
Plaintiffs had not pleaded their best case as to defamation and
business disparagement.
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
2 deadline.
On
Plaintiffs asked for an extension until December 9.
December
12,
Plaintiffs
filed
their
First
Amendment
to
Plaintiffs' Original Petition ("Amended Complaint") (Docket Entry
No. 13).
On December 15, 2022, Defendant filed its Motion to Strike and
Dismiss.
Defendant argues that the "Plaintiffs disregarded the
Court's deadline, and then ignored their own unapproved deadline.
As such,
untimely."
Plaintiffs' Amended
[Complaint]
should be struck as
Defendant also argues that the Amended Complaint fails
to comply with the Prior Order's instructions.
-2-
Specifically the
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.
Plaintiffs instead
reasserted all the claims in the Original Complaint.
Defendant
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.
the
Furthermore,
Prior Order concluded that
Plaintiffs had not pleaded their best case on one particular claim,
but
Plaintiffs
reasserted all the original claims.
In fact
Plaintiffs reasserted some claims with only minimal, superficial
changes.
Complaint.
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.").
2
-3-
Case 4:22-cv-02767 Document 17 Filed on 01/17/23 in TXSD Page 4 of 4
extent of
any
damage
caused
by
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.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
-4-
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