Williams v. Connecticut General Life Insurance Company et al, No. 2:2006cv02747 - Document 32 (D. Ariz. 2008)

Court Description: ORDER denying as moot 22 Motion for Summary Judgment; denying as moot 29 Motion to Strike. Signed by Judge Robert C Broomfield on 09/09/08.(DNH)

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Williams v. Connecticut General Life Insurance Company et al 1 Doc. 32 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 Elizabeth Walters Williams, ) ) Plaintiff, ) ) vs. ) ) Connecticut General Life ) Insurance Company; John ) Hancock Life Insurance ) Company; Black Corporations ) I-X, Inclusive; ABC Companies ) I-X, Inclusive; and John Does ) I-X, Inclusive, ) ) Defendants. ) _____________________________ ) No. CIV 06-2747 PHX RCB O R D E R 20 21 Currently pending before the court is a motion for summary 22 judgment by defendants Connecticut General Life Insurance Company 23 and John Hancock Life Insurance Company (doc. 22) and their related 24 motion to strike plaintiff’s statement of facts (doc. 29). 25 oral argument unnecessary, the court denies defendants’ requests in 26 that regard. 27 28 Finding Background When defendants filed their original motion to dismiss, as the Dockets.Justia.com 1 parties are well aware, there was some confusion as to which 2 complaint that motion was directed - the original complaint filed 3 on September 5, 2006, in the Superior Court of Arizona, Maricopa 4 County, Arizona, or the Amended Complaint filed in that same court 5 on October 20, 2006. 6 Ins., Co., 2007 WL 1839710 (D.Ariz. June 26, 2007). 7 more fully explained below, there is similar confusion surrounding 8 the pending motions. 9 resolve the issue of which is the operative complaint for purposes 10 11 See Williams v. Connecticut General Life As will be Some procedural context is necessary to of the pending defense motions. When confronted with defendants’ initial motion to dismiss, 12 because the record was unclear as to the operative complaint, the 13 court ordered defendants to clarify the state of the record. 14 at *2. 15 counsel averring that prior to removal, on October 17, 2006, they 16 were served with the original complaint. 17 West (doc. 12) at 2:3-4, ¶ 3. 18 defendants were not served with the amended complaint, however, 19 until November 17, 2006 – eight days after removal. 20 ¶¶ 6 and 7. 21 Id. Defendants did that by filing an affidavit from their Affidavit of John C. Attorney West further averred that See id. at 2, After that clarification, to resolve defendants’ motion to 22 dismiss, the court looked to the original complaint, attached to 23 their Notice of Removal. 24 “that to the extent [the] original complaint asserts state law 25 claims relating to and arising from an employee benefit plan, those 26 claims are preempted under ERISA.” 27 thereafter, defendants filed their answer, explicitly stating that 28 they were “answer[ing] the remaining allegations of Plaintiff’s See Doc. 13 at 2. -2- The court then held Id. at 3:17-19. Shortly 1 Original Complaint, which was filed on September 5, 2006.” 2 (doc. 16) at 1 (emphasis added). 3 Statement of facts in Support of [their] Motion for Summary 4 Judgment[,]” defendants’ cites to the complaint directly correspond 5 to allegations in the original complaint. 6 23) at 1, ¶ 1:23-24; and at 2, ¶9. 7 recognize that the amended complaint was filed and served, their 8 motions are directed to the original complaint. 9 discussed below, defendants’ reliance upon the original complaint 10 13 Similarly, in their “Separate See, e.g., DSOF (doc. Thus, although defendants As more fully is a fundamental flaw which the court cannot overlook. 11 12 Ans. Discussion I. Summary Judgment Motion “‘It is hornbook law that an amended pleading supersedes the 14 original, the latter being treated thereafter as non-existent 15 . . . . Once amended, the original no longer performs any function 16 as a pleading[.]’” Doe v. Unocal Corp., 27 F.Supp.2d 1174, 1180 17 (C.D.Cal. 1998) (quoting Bullen v. De Bretteville, 239 F.3d 824, 18 833 (9th Cir. 1956)) (other citations omitted), aff’d and adopted 19 on other grounds, 248 F.3d 915 (9th Cir. 2001). 20 as the First Circuit colorfully pronounced in Connectu LLC v. 21 Zuckerberg, 522 F.3d 82 (1st Cir. 2008), “the earlier complaint is 22 a dead letter and no longer performs any function in the case.” 23 Id. at 91 (internal quotation marks and citation omitted). 24 point of supersedure occurs “when the amended complaint is properly 25 served, not when it is filed.” 26 omitted) (emphasis added) (citing International Controls Corp. v. 27 Vesco, 556 F.2d 665, 669 (2d Cir. 1977)). 28 Or, more recently, The Doe, 27 F.Supp.2d at 1180 (footnote For that reason, along with the settled rule that “[i]n -3- 1 determining the existence of removal jurisdiction based upon a 2 federal question, [the federal court] must look to the complaint as 3 of the time the removal petition was filed[,]” Williams, 2007 WL 4 1839710, at *1 (internal quotation marks and citations omitted), 5 when defendants brought their motion to dismiss, the operative 6 pleading was the original complaint. 7 Northwestern Military Academy, Inc., 2000 WL 33976543, at *2 8 (N.D.Ill. April 20, 2000) (in evaluating defendants’ fraudulent 9 joinder argument, court looked to the first amended complaint, See Momans v. St. John’s 10 rather than the second amended complaint, because the latter was 11 filed in state court prior to removal, but not served on defendants 12 until after removal). 13 defendants readily admit that they were served with the Amended 14 Complaint on November 17, 2006, at that point, the original 15 complaint became “non-existent.” 16 deny as moot defendants’ summary judgment motion directed at that 17 original complaint. 18 Legal Services Corporation, 433 F.Supp. 278, 280 (E.D.Wa. 1977) 19 (denying summary judgment motion where issues raised therein were 20 moot in light of amended complaint; accord Lopez v. Metropolitan 21 Government of Nashville, 2008 WL 913085, at *2 (M.D.Tenn. April 1, 22 2008) (declining to consider previously filed dispositive motions 23 where plaintiffs had filed a third amended complaint, which 24 superseded the original complaint). 25 service of an amended complaint in this action, any ruling 26 pertaining to the original complaint would be a nullity. 27 Miller v. American Export Lines, Inc., 313 F.2d 218-19 (2d Cir. 28 1963) (grant of summary judgment after service of amended In light of the foregoing, because Necessarily then, the court must See Spokane County Legal Services, Inc. v. -4- Indeed, given the filing and See 1 complaint, but before district court was aware of filing of such 2 complaint, was a nullity because that court did not have the 3 amended complaint before it). 4 there will be no meaningful distinction between the original and 5 the amended complaint, at least insofar as defendants frame their 6 summary judgment arguments. 7 that regard, however. 8 II. Perhaps, at the end of the day, The court is not free to speculate in Motion to Strike 9 Likewise, the court denies defendants’ motion to strike. 10 First, this motion has been rendered moot by the court’s ruling on 11 the related summary judgment motion. 12 moot, LRCiv 7.2(m)(2) precludes it, at least in part. 13 Even if this motion was not Effective December 1, 2006, LRCiv 7.2 was amended to add 14 subsection (m), specifically addressing “Motions to Strike.” 15 Rule plainly states in relevant part: 16 17 18 19 That An objection to the admission of evidence offered in . . . opposition to a motion must be presented in the objecting party’s responsive or reply memorandum (or, if the underlying motion is a motion for summary judgment, in the party’s response to another party’s separate statement of material facts) and not in a separate motion to strike or other separate filing. 20 21 LRCiv 7.2(m)(2) emphasis added). 22 Plaintiff’s Statement of Facts (“PSOF”) because allegedly: (1) she 23 has failed to timely make her initial Rule 26 disclosures; (2) the 24 attached exhibits are not properly authenticated; (3) the attached 25 exhibits contain hearsay; and (4) PSOF is irrelevant. 26 LRCiv 7.2(m)(1) allows a motion to strike on the first ground, 27 subsection (2) of that Rule, as just recited, precludes the 28 remaining three bases for this defense motion. Defendants are moving to strike -5- Although 1 The court hereby ORDERS that: 2 (1) the motion by defendants Connecticut General Life 3 Insurance Company and John Hancock Life Insurance Company (doc. 22) 4 is DENIED as moot; and 5 (2) the motion by defendants Connecticut General Life 6 Insurance Company and John Hancock Life Insurance Company (doc. 29) 7 is DENIED as moot. 8 DATED this 9th day of September, 2008. 9 10 11 12 13 14 15 Copies to counsel of record 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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