United States District Court, N.D. Mississippi, Oxford Division
RICK WOOLFOLK and EVA K. WOOLFOLK PLAINTIFFS
DAVID A. RHODA DEFENDANT
M. BROWN, UNITED STATES DISTRICT JUDGE.
the Court are three motions to dismiss filed by David Rhoda.
Docs. #4, #11, #28.
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.
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.
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.
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.
First Motion to Dismiss
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
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).
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
Second Motion to Dismiss
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).
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. ...