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)

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.

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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

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