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Woolfolk v. Rhoda

United States District Court, N.D. Mississippi, Oxford Division

September 19, 2019

RICK WOOLFOLK and EVA K. WOOLFOLK PLAINTIFFS
v.
DAVID A. RHODA DEFENDANT

          ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE.

         Before the Court are three motions to dismiss filed by David Rhoda. Docs. #4, #11, #28.

         I Procedural History

         On December 12, 2018, Rick Woolfolk and Eva Woolfolk filed a complaint against David Rhoda in the Chancery Court of Panola County, Mississippi, regarding a contract for the sale of real property. Doc. #2. The complaint sought specific performance and a monetary judgment based on the “Defendant’s failure and refusal to tender said deed … in direct violation of said Contract;” as well as punitive damages and attorney’s fees based on alleged bad faith. Id. at 3–5. On January 28, 2019, Rhoda, asserting diversity jurisdiction, removed the state court action to the United States District Court for the Northern District of Mississippi. Doc. #1.

         On February 1, 2019, Rhoda filed a motion dismiss for lack of personal jurisdiction, insufficient process, and insufficient service of process (“First Motion to Dismiss”). Doc. #4. Approximately three weeks later, following personal service of a federal court summons, Rhoda, citing Mississippi’s three-year statute of limitations for contract actions, filed a motion to dismiss for failure to state a claim (“Second Motion to Dismiss”). Docs. #11, #12. On March 15, 2019, the Woolfolks moved to amend their complaint to specifically set forth allegations justifying equitable estoppel, Doc. #13, and also filed an untimely response to the Second Motion to Dismiss, Doc. #15.

         On April 8, 2019, United States Magistrate Judge Roy Percy granted the motion to amend and directed the Woolfolks to file “within seven days … their Amended Complaint in the same form as the proposed Amended Complaint for Specific Performance of Contract and for Damages, Etc. attached as Exhibit ‘A’ to the Motion [to Amend].” Doc. #20. The Woolfolks filed an amended complaint the next day which, in addition to specifying grounds for equitable estoppel, asserted an allegation of fraud not contained in the proposed amended complaint. Doc. #21.

         On April 23, 2019, Rhoda filed a motion to strike the amended complaint as non-compliant with Judge Percy’s order granting leave. Doc. #22. The motion also sought sanctions. Id. On May 9, 2019, Judge Percy granted the motion to strike, denied the request for sanctions, and directed the Woolfolks to file the amended complaint as originally directed. Doc. #26. The Woolfolks filed the amended complaint, as directed, on May 10, 2019. Doc. #27. Two weeks later, Rhoda filed a motion to dismiss for failure to state a claim (“Third Motion to Dismiss”), Doc.#28, which has been fully briefed.

         II First Motion to Dismiss

         The First Motion to Dismiss seeks dismissal for lack of personal jurisdiction, insufficient process, and insufficient service of process because “Plaintiffs did not obtain effective service of the Complaint and Summons on Defendant David Rhoda ….” Doc. #5 at 4. The Woolfolks contend that while their initial attempt at service was insufficient, Rhoda was personally and properly served with process on February 5, 2019. See Doc. #9 at PageID #83; see Doc. #9-2 at PageID #88. Rhoda does not dispute this argument.

         Where a case has been removed prior to effective service, “process or service may be completed or new process issued in the same manner as in cases originally filed in [the] district court.” 28 U.S.C. § 1448. Service in cases before the district courts is governed by Federal Rule of Civil Procedure 4. Of relevance here, Rule 4 provides that an individual may be served “in a judicial district of the United States by … delivering a copy of the summons and of the complaint to the individual personally ….” Fed.R.Civ.P. 4(e)(2)(A).

         The Woolfolks submitted a certificate of service stating that Rhoda was personally served with a copy of the summons and the complaint on February 5, 2019, in Pearcy, Arkansas. Doc. #8. Because there is no dispute that Rhoda was personally served or that Pearcy, Arkansas, is located in a judicial district of the United States, the First Motion to Dismiss is denied.

         III Second Motion to Dismiss

         As a general rule, “[a]n amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Accordingly, the filing of an amended complaint will ordinarily moot a pending motion to dismiss unless the amended complaint “on its face” fails to address the alleged defects identified in the motion to dismiss. See McIntyre v. City of Rochester, 228 F.Supp.3d 241, 241–42 (W.D.N.Y. 2017). Additionally, and of relevance here, a defendant may moot an earlier motion to dismiss by filing a second motion advancing “the same arguments raised in the [earlier] motion to dismiss.” Parsons v. City of Hous., No. H–10–4302, 2011 WL 5040452, at *2 n.3 (S.D. Tex. Oct. 24, 2011).

         The Woolfolks amended complaint on its face addresses the statute of limitations argument raised in the Second Motion to Dismiss. See Doc. #27. And, the Third Motion to Dismiss, like the Second Motion to Dismiss, raises a statute of limitations defense. See Doc. #29. ...


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