Motion To Dismiss: When An Amended Complaint Might Not Moot What You Think

• Published date: 15 March 2024
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
• Author: Mr Lionel Lavenue, Joseph Myles and Michael Nielsen

Under Federal Rule of Civil Procedure 15(a)(1), a plaintiff can amend its complaint once as a matter of course within 21 days of serving the original complaint, or 21 days after the service of a responsive pleading or a motion under Rule 12(b), (e), or (f). Circuit courts agree on the general rule that an amended complaint ordinarily supersedes the original and renders it of no legal effect.

However, the U.S. Circuit Courts of Appeal are split on the related questions of whether an amended complaint, filed in accordance with Rule 15(a)(1), moots a pending motion to dismiss, and if Rule 15(a)(1) creates a duty to respond to an amended complaint, if a motion to dismiss was pending, when an amended complaint is filed.

Mootness is a legal doctrine that prevents courts from adjudicating cases or controversies that "are no longer 'live' or [where] the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969).

This article explores different approaches circuit courts have taken to address the effects of an amended complaint, filed in accordance with Rule 15(a)(1), on pending motions to dismiss the original complaint and how practitioners should navigate this circuit split.

In most circuits, including the 3rd, 6th and 8th Circuits, an amended complaint automatically moots a pending motion to dismiss and creates a duty to respond to the amended complaint. Other circuits, however, recognize exceptions to the majority rule.

For example, in the 2nd and 5th Circuits, district courts are not required to moot a pending motion to dismiss the original complaint when an amended complaint is filed. Rather, they have discretion to apply the pending motion to dismiss the original complaint to the newly filed amended complaint. Additionally, in these circuits, district courts have discretion to regard prior-filed responses to the original complaint as responses to the amended complaint.

A motion to dismiss may continue to operate when the amended complaint contains the same claim or defects as the original complaint.

Some circuit courts ' namely, the 5th Circuit ' have held that filing an amended complaint does not automatically moot a pending motion to dismiss if the amended complaint contains the same claim or defects as the original complaint. If a motion to dismiss attacks the original complaint for deficiencies that persist in the amended complaint, the court may choose to apply the original motion to dismiss to the amended...