Austin v. Transamerica Life Insurance Company

— 1 — — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Margaret Austin, et al., No. CV-19-00238-TUC-JAS 10 Plaintiffs, ORDER 11 v. 12 Transamerica Life Insurance Company, 13 Defendant. — 14 — 15 The Court has reviewed the briefing, attachments, and authority pertaining to 16 Defendant’s motion to dismiss. See Docs. 12, 14, 17. In addition, the Court has reviewed 17 the filings and authority pertaining to Plaintiff’s motion to supplement the opposition to 18 the motion to dismiss. See Docs. 19, 21. Based on its review of the record and authority, 19 it appears that the supplemental information referenced in Doc. 19 could impact the 20 allegations and claims in this case, and Plaintiffs also seek to add allegations and claims 21 relating to fraud. In light of the foregoing, the Court will give Plaintiffs a final opportunity 22 to file one more amended complaint that includes all allegations and claims it wishes to 23 pursue in this case; the final amended complaint shall be filed no later than 1/31/20, and 24 no more amendments will be allowed in this case. 25 As the Court is directing Plaintiffs to file a final amended complaint, the Court will 26 deny Defendant’s motion to dismiss without prejudice with leave to file a new motion 27 within 30 days of the filing of Plaintiffs’ final amended complaint1; Plaintiffs shall file a 28 1 The motion to supplement is only granted to the extent that the Court is directing Plaintiffs to file a final amended complaint. 1 response within 30 days, and Defendants shall file a reply within 17 days.2 See, e.g., 2 Ferdik v. Bonzalet, 963 F.2d 1258, 1262 (9th Cir. 1992)3 (it is a “well-established doctrine 3 that an amended pleading supersedes the original [or previously filed] pleading . . . after 4 amendment the original [or previously filed] pleading no longer performs any function and 5 is treated thereafter as non-existent.”); Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 6 1956)(“It is hornbook law that an amended pleading supersedes the original, the latter 7 being treated thereafter as non-existent . . . Once amended, the original no longer performs 8 any function as a pleading and cannot be utilized to aid a defective amendment.”); Hal 9 Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990)("[A]n 10 amended pleading supersedes the original."); King v. Atiyeh, 814 F.2d 565, 567-68 (9th Cir. 11 1987)(“[Plaintiffs] contend that the district court erred in holding that their amended 12 complaint superseded their original complaint. This contention is meritless. All causes of 13 action alleged in an original complaint which are not alleged in an amended complaint are 14 waived.”); London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)(“It has long 15 been the rule in this circuit that a plaintiff waives all causes of action alleged in the original 16 complaint which are not alleged in the amended complaint.”); Loux v. Rhay, 375 F.2d 55 , 17 57 (9th Cir. 1967)(“The amended complaint supersedes the original, the latter being treated 18 thereafter as non-existent.”). To the extent a new motion to dismiss, response, and reply 19 will be filed as to Plaintiffs’ final amended complaint, these briefs shall stand on their own, 20 and shall not reference or incorporate previous briefing. 21 Lastly, the Court notes that Defendant raises some meritorious arguments in their 22 motion to dismiss. In drafting the final complaint, Plaintiffs should carefully consider those 23 arguments, what state’s law likely applies to any claims that will be asserted in this case, 24 and draft the final amended complaint to address potential deficiencies, or otherwise omit 25 allegations or claims that can not be legitimately corrected. In addition, Plaintiffs should 26 consider citing to and attaching any contractual provisions or other related documentary 27 2 If these deadlines do not work for the parties, the parties are free to stipulate to different deadlines and submit a proposed order to the Court. 28 3 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing case law in this Order. 1 || evidence in support of their claims. In responding to any future motion to dismiss, 2|| Plaintiffs should directly address what state’s law applies to this case, and cite to any 3 || contractual provisions or other related documentary evidence that supports their position; 4|| Plaintiffs should be prepared to cite the correct state’s law and explain how the allegations 5|| in the final complaint support those claims under that state’s law.* — 6 — 7 Dated this 23rd day of December, 2019. — 8 — — 9 — A ark, Honorable James A. Soto I! United States District Judge — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — 4 The Court notes that Defendant argues that Wisconsin law applies in this case. As to the 7 lack of standing issue (as to the children) related to this life insurance dispute, it appears that Defendant relies primarily on an Arizona state case for dismissal, but relies on Wisconsin law for the other claims; in the new motion to dismiss, Defendant should clarify 28 |) its position as to whether Wisconsin (or Arizona law) supplies the basis for dismissal related to standing. -3-