Thomas v. Woods et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
LAUREE THOMAS,
Plaintiff.
V.
MAJKA WOODS, et al.,
Defendants.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 3:25-cv-00209
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
The live pleading is Plaintiff Lauree Thomas’s First Amended Complaint. See
Dkt. 33. Defendants have filed a Motion to Dismiss Plaintiff’s [First] Amended
Complaint. See Dkt. 54. In her response to the motion to dismiss, Thomas
introduces new factual allegations and legal theories not contained in her First
Amended Complaint. As a general rule, factual allegations and legal theories raised
for the first time in a response to a motion to dismiss are not part of the pleadings
to be considered for purposes of the motion to dismiss. See Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (“Because the court reviews only
the well-pleaded facts in the complaint, it may not consider new factual allegations
made outside the complaint.”).
As part of her response to the motion to dismiss, Thomas asks for an
opportunity to amend her complaint in the event her live pleading is deficient.
Given Thomas’s pro se status, see Jackson v. Reese, 608 F.2d 159, 160 (5th Cir.
1979), and a district court’s obligation to freely grant leave to allow a plaintiff to
file an amended complaint when justice so requires, see Fed. R. Civ. P. 15(a)(2), I
will give Thomas yet another chance to amend her complaint. 1 This is a third bite
at the apple. Thomas should include in the Second Amended Complaint all factual
1 A motion for leave to amend is a nondispositive pretrial matter properly decided by a
magistrate judge. See Talbert v. Am. Risk Ins. Co., 405 F. App’x. 848, 851 (5th Cir. 2010).
United States District Court
Southern District of Texas
ENTERED
November 25, 2025
Nathan Ochsner, Clerk
Case 3:25-cv-00209 Document 75 Filed 11/25/25 in TXSD Page 1 of 2

2
allegations and legal theories she seeks to advance in this case. To be clear, this is
the last chance Thomas will have to amend her complaint before I test the
sufficiency of the complaint on a motion to dismiss.
Thomas’s Second Amended Complaint must be filed by December 12, 2025.
Defendants must answer the lawsuit or file a motion to dismiss by January 16,
2026. Thomas must respond to the motion to dismiss by February 6, 2026.
Defendants may file a reply in support of the motion to dismiss by February 13,
2026.
Because I am allowing Thomas to file a Second Amended Complaint, I
recommend Defendants’ Motion to Dismiss Plaintiff’s [First] Amended Complaint
(Dkt. 54) be denied as moot.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R.
Civ. P. 72(b)(2). Failure to file timely objections will preclude appellate review of
factual findings and legal conclusions, except for plain error.
SIGNED this 	day of November 2025.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
Case 3:25-cv-00209 Document 75 Filed 11/25/25 in TXSD Page 2 of 2