Schaffer, Jr. v. Alexander et al

Filing 15

ORDER DISMISSING AS MOOT 10 Motion for Judgment on the Pleadings. Signed by Judge Robert Pitman. (td)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION JOSEPH M. SCHAFFER, JR., Plaintiff, v. WENDY ALEXANDER, STEVE UTLEY, TOBEY LANTHAM, MICHAEL W. ZIENTZ, LSF9 MASTER PARTICIPATION TRUST, and MACKIE WOLF ZIENTZ & MANN, P.C., Defendants. § § § § § § § § § § § § 1:17-cv-297-RP ORDER Before the Court is Plaintiff Joseph M. Schaffer, Jr.’s Notice of Plaintiff’s Filing First Amended Verified Petition in Response to Defendant U.S. Bank Trust, N.A.’s Motion for Judgment on the Pleadings. (Dkt. 13). Plaintiff asserts that, under Fifth Circuit authority, Defendant’s Rule 12(c) motion for judgment on the pleadings must be considered a Rule 12(b)(6) motion, thus enabling him to amend his pleadings as a matter of course under Rule 15(a)(1)(B). The cited authority does not stand for that proposition, however. The cases merely establish that Rule 12(c) motions are analyzed under the same standard as motions under Rule 12(b)(6). See Great Plains Trust v. Morgan Stanley Dean Witter, 313 F.3d 305, 313–14 (5th Cir. 2002) (noting a case in which consideration of other documents was held to convert 12(b)(6) motion into a 12(c) motion, not the converse); Doe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) (“A motion for judgment on the pleadings under rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6).”). Thus, Defendant’s Rule 12(c) motion does not trigger a right to amend as a matter of course under Rule 15. See Fed. R. Civ. P. 15(a)(1)(B) (allowing amendment as of right within 21 days of service of responsive pleading or motion under Rule 12(b), (e), or (f)). Plaintiff does not otherwise demonstrate that his amendment is proper under Rule 15(a)(2), which requires the consent of the opposing party or leave of court. In the interest of judicial economy, however, the Court will construe Plaintiff’s Notice as a motion for leave to amend and GRANT the motion. In light of the amendments, the Court DISMISSES AS MOOT Defendant’s Motion for Judgment on the Pleadings. (Dkt. 10). Defendant may file a revised motion in the event that Plaintiff’s amendments have not addressed the issues raised in its earlier motion. Additionally, Defendants removed this case to this Court on April 6, 2017. But contrary to the Local Rules, the parties have not yet submitted a proposed scheduling order. See W.D. Tex. Loc. R. CV-16(c) (not later than 60 days after any appearance of any defendant, the parties shall submit a proposed scheduling order to the court). Accordingly, the Court ORDERS the parties to file a proposed scheduling order on or before August 10, 2017. The Court admonishes the parties that a failure to comply with this order may result in dismissal of this action for want of prosecution. See FED. R. CIV. P. 41(b); Larson v. Scott, 157 F. 3d 1030, 1031 (5th Cir. 1998); Boudwin v. Graystone Ins. Co., 756 F. 2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)). SIGNED on July 27, 2017. _____________________________________ ROBERT PITMAN UNITED STATES DISTRICT JUDGE 2

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