297 F.R.D. 159
D.D.C.2013Background
- UST sued its former counsel (Neil S. Ende and Technology Law Group LLC) alleging legal malpractice, negligence, and breach of fiduciary duty arising from representation in a 2005 civil case, seeking $10 billion.
- UST filed the original complaint in D.C. Superior Court on Nov. 30, 2012; defendants removed to federal court on Jan. 7, 2013.
- Defendants moved to dismiss the original complaint; UST’s local counsel sought to withdraw and indicated it would file an amended complaint, causing a short delay in the opposition filing.
- Defendants moved to treat their motion to dismiss as conceded under Local Civ. R. 7(b); UST filed an opposition and a motion for a 60-day extension (or to proceed without local counsel).
- UST filed a First Amended Complaint; defendants moved to strike the amended complaint and also had an outstanding motion to dismiss the superseded original complaint.
- The Court declined to treat the motion to dismiss as conceded, granted UST’s nunc pro tunc extension to file the amended complaint, denied the motion to strike, and denied without prejudice the motion to dismiss the now-superseded original complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ motion to dismiss should be treated as conceded under LCvR 7(b) | Opposed—delay due to withdrawal of local counsel; sought leave to amend | Motion should be treated as conceded because UST missed the opposition deadline | Court exercised discretion not to treat as conceded; denied motion to dismiss |
| Whether to grant extension of time nunc pro tunc to file amended complaint | Requested 60-day extension to file amended complaint | Opposed implicitly (sought dismissal/consequence for missed deadline) | Granted 60-day extension nunc pro tunc; amended complaint treated as timely filed |
| Whether amended complaint should be struck under Rule 12(f) | Amended complaint is proper and should stand | Move to strike as redundant/improper | Motion to strike denied; amended complaint preserved |
| Disposition of defendants’ motion to dismiss original complaint after amendment | Amended complaint supersedes originals; merits should be reached on operative pleading | Sought dismissal of original complaint | Motion to dismiss original complaint denied without prejudice (defendants may move against amended complaint) |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (conclusory allegations insufficient)
- FDIC v. Bender, 127 F.3d 58 (district court discretion in enforcing local rules)
- Twelve John Does v. District of Columbia, 111 F.3d 571 (court may decline to treat motions as conceded)
- Fox v. American Airlines, 389 F.3d 1291 (upholding treating motion as conceded when no opposition filed)
- Bell v. Redding, 539 F. Supp. 2d 423 (treating motion as conceded where no opposition filed)
- Forman v. Davis, 371 U.S. 178 (leave to amend should be freely given)
- Conley v. Gibson, 355 U.S. 41 (rules facilitate deciding cases on the merits)
- Unique Indus. v. 965207 Alberta Ltd., 722 F. Supp. 2d 1 (purpose of Rule 12(f) to avoid wasting time on spurious matters)
- Nwachukw v. Rooney, 362 F. Supp. 2d 183 (motion to strike rests in court's discretion)
- Washer v. Bullit County, 110 U.S. 558 (amended complaint supersedes earlier pleading)
- Bancoult v. McNamara, 214 F.R.D. 5 (same principle regarding superseding complaints)