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Estate of Lisa Willardson v. Wolfson

United States District Court, D. Nevada

March 26, 2014

ESTATE OF LISA WILLARDSON, Plaintiff,
v.
STEVEN B. WOLFSON as DISTRICT ATTORNEY OF CLARK COUNTY, NEVADA, in his personal and official capacities; DAVID ROGER as DISTRICT ATTORNEY OF CLARK COUNTY, NEVADA, in his personal and official capacities; MARY BROWN, in her personal and official capacities; DOES 1-10, inclusive, and ROE CORPORATIONS 1-10, inclusive, Defendants.

ORDER DENYING MOTION TO DISMISS (Dkt. No. 5)

ANDREW P. GORDON, District Judge.

I. BACKGROUND

The parties are aware of the factual and procedural background of this case. Nonetheless, a brief recap of the procedural history is warranted.

On June 7, 2013, plaintiff Lisa Willardson[1] filed the Complaint.[2] She named as defendants the Clark County District Attorney's Office and Steven B. Wolfson, District Attorney, in his official capacity (the "Original Defendants"). She pleaded the following claims for relief: (1) 42 U.S.C. § 1983; (2) slander/defamation per se; (3) negligent supervision; and (4) declaratory relief.

On June 28, 2013, the Original Defendants filed a motion to dismiss under Rule 12(b)(6) (the "Motion").[3]

On July 9, 2013, Willardson timely filed the First Amended Complaint ("FAC") as of right under Rule 15(a)(1)(B).[4] As indicated in the caption above, she deleted the Clark County District Attorney's Office as a defendant, added two individual defendants, and added personal capacity claims against those individuals under 42 U.S.C. § 1983 (collectively, the "Defendants").

On August 1, 2013, the Defendants filed an answer to the FAC.[5]

This Order resolves the pending motion to dismiss, which the Court denies as moot.

II. ANALYSIS

"A Rule 12(b)(6) motion must be made before the responsive pleading."[6] As an answer is a responsive pleading, a Rule 12(b)(6) motion filed post-answer is untimely.[7] Therefore, in relation to the FAC, the Motion was untimely filed.[8] The Court views the Motion in relation to the FAC rather than to the Complaint because an "amended complaint supersedes the original, the latter therefore being treated as non-existent."[9]

Although there are limited circumstances in which courts will rule on a Rule 12(b)(6) motion filed before an amended complaint, this is not one of them. Willardson added little in the way of factual allegations, but she changed the configuration of defendants and added new personal capacity claims. It would be inefficient and time-consuming for the Court to parse through the arguments made in the Motion as against the Complaint to determine how and whether those same arguments apply as against the FAC. Moreover, the Defendants could have easily withdrawn the Motion and filed another Rule 12(b)(6) motion in response to the FAC. Instead, they opted to file an answer.

In this instance, the filing of the FAC and the filing of the answer thereto rendered the Motion moot. If the Defendants wish to challenge the FAC, they may file an appropriate motion.

III. CONCLUSION

The motion to dismiss (Dkt. No. 5) DENIED as moot.


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