Motion to Dismiss: When an Amended Complaint Might Not Moot What You Think

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 complaint, rather than deny the motion as moot and require that the defendant file a new motion to dismiss duplicative allegations found in the amended complaint.

In the 2018 5th Circuit decision Rountree v. Dyson, appellant Rountree argued that the district court erred in granting a motion to dismiss the amended complaint. Rountree argued that because he amended his complaint prior to dismissal, the amended complaint "nullified the pending motion to dismiss." The 5th Circuit disagreed.

The 5th Circuit explained that "defendants should not be required to file a new motion to dismiss simply because an amended pleading was filed while their motion was pending." The court further ruled that "[i]f some of the defects raised in the original motion remain in the new pleading, the court may consider the motion as being addressed to the amended pleading."

Because Rountree's amended complaint did not fix the defects of the original complaint, the 5th Circuit concluded that "the [district] court acted within its discretion when it considered the [defendant's] motion before dismissing the complaint."

District courts may exercise discretion to determine that a pending motion to dismiss may be applied to an amended complaint.

Some circuit courts, such as the 2nd Circuit, allow district courts to exercise discretion to determine if a motion to dismiss filed against the original complaint may be applied to an amended complaint. These courts have recognized that this approach prevents unnecessary filings and promotes judicial efficiency.

In its 2020 decision, Pettaway v. National Recovery Solutions, LLC, the 2nd Circuit found that, although "an amended pleading ordinarily supersedes the original and renders it of no legal effect," the rules do not "dictate that a pending motion to dismiss is automatically rendered moot when a complaint is amended." There, Plaintiff's original complaint alleged that Defendant violated the Fair Debt Collection Practices Act (FDCPA) by "us[ing] false, deceptive, and misleading practices" in a debt collection letter.

Plaintiff alleged the letter's suggestion that "interest, late charges, and other charges [] may vary from day to day," violated the FDCPA because the letter "suggests that late charges and other charges will cause a customer's debt to increase" when increased charges were "not legally or contractually available."

Defendant then filed a 12(b)(6) motion to dismiss the original complaint, arguing that a statement that charges "may" vary is not a misleading statement that they "will" vary. Plaintiff responded by filing an amended complaint adding allegations that Defendant "had not charged, and did not intend to charge, interest on the debt."

Plaintiff argued that the amended complaint mooted Defendant's pending 12(b)(6) motion to dismiss. The district court disagreed, and rather than moot the Defendant's 12(b)(6) motion, proceeded to analyze Defendant's pending motion to dismiss against Plaintiff's amended complaint.

After analyzing the facts as alleged in Plaintiff's amended complaint, the district court found that the new allegations in the amended complaint "did not save [the] claim."

The district court reasoned that both the original and amended complaints do not "allege that interest could not accrue" because the "future possibility [of interest] is completely consistent with the word 'may' in the letter's language," and therefore is not false, deceptive, or misleading under the FDCPA. The district court ultimately dismissed the amended complaint under the pending 12(b)(6) motion.

On appeal, the 2nd Circuit affirmed the district court's ruling and explicitly adopted the district court's analysis, noting that the district court's approach of ruling on a motion to dismiss that remains applicable after filing an amended complaint "promotes judicial economy by obviating the need for multiple rounds of briefing addressing complaints that are legally insufficient."

The 2nd Circuit laid out the newly adopted rule as follows: "[W]hen a plaintiff properly amends her complaint after a defendant has filed a motion to dismiss that is still pending, the district court has the option of either denying the pending motion as moot or evaluating the motion in light of the facts alleged in the amended complaint." This case-by-case discretionary approach saves judicial resources, reduces unnecessary or duplicative filings, and avoids decisions on mere procedural technicalities.

Duty to respond to the amended complaint

In general, a party has a duty to respond to an amended complaint. However, there are, once again, exceptions to this general rule.

In the 2020 9th Circuit decision KST Data Inc. v. DXC Tech. Co., the 9th Circuit laid out some of these exceptions. The court explained that if the amended complaint "does not add new parties, new claims, or significant new allegations" a party does not have a duty to respond and "the previously filed response to the original pleading will suffice."

The court also rejected the argument that a party must file a response to an amended complaint under Rule 15(a)(3). The court reasoned that "by its plain terms, Rule 15(a)(3) does not render a prior response to a prior pleading moot and require the filing of a new answer."

The Federal Rules of Civil Procedure still apply when responding to an amended complaint. Specifically, although a Rule 12 pre-answer defense or objection can be raised in response to new content contained in an amended complaint, any defenses or objections that could have been raised in response to the originally filed complaint remain waived. Also, failure to file an amended answer will result in any new allegations alleged in the amended complaint being admitted under Rule 8(b)(6).

Practice pointers in response to amended complaints

While some circuits allow district courts to exercise discretion to determine if an original motion to dismiss can be applied to an amended complaint, parties should know that this is not the norm. Before relying on a previous motion to dismiss, defendants should ensure that there is precedent for applying a motion to dismiss the original complaint to the amended complaint. If the motion to dismiss the original complaint also clearly addresses the amended complaint, defendants may be able to save time and money by relying on their original motion to attack the amended complaint.

Additionally, defendants should always respond to an amended complaint, unless they are sure that there are no new parties, claims, or allegations in the amended complaint, and the law in their jurisdiction does not require a new response. Failure to properly respond to the amended complaint could result in any new allegations in the amended complaint being admitted. If a party is sure that responding to the amended complaint is unnecessary, relying on the previously filed response to the original complaint could save time and money.