Garza et al v. Cherokee Healthcare Services

Western District of Texas, txwd-5:2019-cv-00353

ORDER DENYING AS MOOT WITHOUT PREJUDICE re [15] MOTION to Dismiss filed by Cherokee Healthcare Services. Signed by Judge Fred Biery.

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IN THE UNITED Case 5:19-cv-00353-FB STATES19 Document DISTRICT COURT Page 1 of 1 Filed 06/12/19 FOR WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CYNTHIA GARZA, ELSA TOSCANO, § NORMA BEXAR-MOLINE, TERESA § VILLANUEVA, and SAN JUANA GOMEZ, § Individually and on Behalf of All Those § Similarly Situated, § § Plaintiffs, § § VS. § CIVIL ACTION NO. SA-19-CA-353-FB § CHEROKEE HEALTHCARE SERVICES, § LLC, § § Defendant. § ORDER DENYING MOTION TO DISMISS Before the Court is Defendant's Motion to Dismiss filed on May 29, 2019 (docket #15). Defendant seeks dismissal of the claims against it because the collective claim alleged in plaintiffs' complaint fails to include factual allegations to give the defendant fair notice of who is contained in the putative class and fails to adequately plead the individual claims on behalf of the plaintiffs. In response, plaintiffs filed Plaintiffs' First Amended Collective Action Complaint (docket #17) and Plaintiffs' Response to Defendant's Motion to Dismiss (docket #18), on June 12, 2019. Plaintiffs contend their amended complaint makes the pending motion to dismiss moot because it supersedes the original complaint. The Court agrees. Based on the filing Plaintiffs' First Amended Collective Action Complaint on June 12, 2019 (docket #17), the Court finds the pending motion to dismiss should be denied at this time. Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss (docket #15) is DENIED AS MOOT WITHOUT PREJUDICE to refiling in light of the filing of the Plaintiffs' Amended Collective Action Complaint. See Meyer v. Shinn Const., PE:18-CV-3-DC-DF, 2018 WL 1905049 at *1 (W.D. Tex. Mar. 3, 2018) ("filing of an amended complaint, which supersedes an original complaint, renders moot a motion to dismiss the original complaint"); Smallwood v. Bank of America, Civil Action No. 3:11-CV- 1283-D, 2011 WL 4941044 at *1 (N.D. Tex. Oct. 17, 2011) (granting leave to amend complaint and denying "motion to dismiss without prejudice as moot"); Comb v. Benji's Special Educ. Acad., Inc., 745 F. Supp. 2d 755, 773 (S.D. Tex. 2010) (denying as moot motion to dismiss "without prejudice to refiling in light of Plaintiffs' second amended complaint"). It is so ORDERED. SIGNED this 12th day of June, 2019. _________________________________________________ FRED BIERY UNITED STATES DISTRICT JUDGE