The Southern Company Employee Savings Plan v. Costa et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THE SOUTHERN COMPANY 	)
EMPLOYEE SAVINGS PLAN, 	)
Plaintiff/Counter Defendant, 	)
)
v. 	) 	CIVIL ACTION NO. 1:24-00040-KD-N
)
MARY ROBIN COSTA and 	)
BRANDI COSTA NOLEN, 	)
Defendants/ 	)
Counter Claimants, 	)
)
& 	)
)
BRANDI COSTA NOLEN, 	)
Third Party Plaintiff, 	)
)
v. 	)
)
SOUTHERN COMPANY 	)
EMPLOYEE SAVINGS PLAN 	)
COMMITTEE SOUTHERN 	)
COMPANY SERVICES, INC., 	)
Third Party Defendant. 	)
ORDER
The Southern Company Employee Savings Plan (“Interpleader Plaintiff”)
initiated this civil interpleader action by filing a complaint with the Court on
February 8, 2024. (Doc. 1). On March 29, 2024, Defendant Brandi Nolen filed her
answer to the complaint, which included “a counterclaim against the interpleader
Plaintiff and a third-party complaint against the Plan Administrator under Rule
14(a)(3) of the Federal Rules of Civil Procedure[,]” (Doc. 19, PageID.117), with “the
Plan Administrator” identified therein as “Southern Company Employee Savings

Plan Committee Southern Company Services, Inc.” (Id., PageID.121).1
The Interpleader Plaintiff filed its answer to Nolen’s counterclaim on April 19,
2024 (Doc. 23), while the Plan Administrator, identifying itself as “Third party
Defendant Southern Company Employee Savings Plan Committee” (see Doc. 24,
PageID.145)), filed a motion to dismiss Nolen’s third-party complaint under Federal
Rule of Civil Procedure 12(b)(6) on May 1, 2024 (Doc. 24). On May 22, 2024, Nolen
filed her “First Amended Answer, Counterclaim and Third Party Complaint” (Doc.
30), along with a separate brief responding to the motion to dismiss (Doc. 31).
Federal Rule of Civil Procedure 15(a) governs “Amendments [to Pleadings]
Before Trial.” Rule 15(a)(1) provides that “[a] party may amend its pleading once as
a matter of course no later than: (A) 21 days after serving it, or (B) if the pleading is
one to which a responsive pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.” “In all other cases, a party may amend its pleading only with the opposing
party's written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2). Nolen timely
amended her third-party complaint once as a matter of course under Rule 15(a)(1)(B)
by filing her first amended third-party complaint (Doc. 30) within 21 days of service
of the Plan Administrator’s Rule 12(b) motion to dismiss. As a result of the
amendment, the Rule 12(b) motion to dismiss is now directed at a pleading that is no
1 Because the third-party complaint was filed with Nolen’s original answer, she did
not need the Court’s leave to file it. See Fed. R. Civ. P. 14(a)(1) (“[T]he third-party
plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint
more than 14 days after serving its original answer.”).

longer operative. See Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243
(11th 	Cir. 	2007) 	(per 	curiam) 	(“As 	a 	general 	matter, 	‘[a]n 	amended 	pleading
supersedes 	the 	former 	pleading; 	the 	original 	pleading 	is 	abandoned 	by 	the
amendment, 	and 	is 	no 	longer 	a 	part 	of 	the 	pleader's 	averments 	against 	his
adversary.’” (quoting Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V
OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006) (citation and quotation
omitted))); Fritz v. Standard Sec. Life Ins. Co. of N.Y., 676 F.2d 1356, 1358 (11th Cir.
1982) (“Under the Federal Rules, an amended complaint supersedes the original
complaint.”). Moreover, the amended third-party complaint appears to be an effort to
address at least some of the issues raised in the Plan Administrator’s motion. See
Fed. R. Civ. P. 15(a)(1) advisory committee’s note to 2009 amendment (stating that
the current version of Rule 15(a)(1) was enacted to “force the pleader to consider
carefully and promptly the wisdom of amending to meet the arguments in [a Rule
12(b), (e), or (f)] motion[, as a] responsive amendment may avoid the need to decide
the 	motion 	or 	reduce 	the 	number 	of 	issues 	to 	be 	decided, 	and 	will 	expedite
determination of issues that otherwise might be raised seriatim”).
In light of the foregoing, the Rule 12(b)(6) motion to dismiss the initial third-
party complaint (Doc. 24) is MOOT.2 The Plan Administrator may, of course, re-raise
its arguments in a new motion directed at the first amended third-party complaint,
2 See Florence v. Stanback, 607 F. Supp. 2d 1119, 1120-21 (C.D. Cal. 2009) (holding
that magistrate judge did not exceed jurisdiction by denying a motion to dismiss
without prejudice to the defendants’ ability to raise the same issues in another
motion).

if appropriate.3 The Plan Administrator’s response to the first amended third-party
complaint is due in accordance with Federal Rule of Civil Procedure 15(a)(3).
DONE and ORDERED this the 24th day of May 2024.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
3 	The undersigned expresses no opinion in this order on whether the first
amended third-complaint would still be subject to dismissal for any of the reasons
stated in the present motion to dismiss.
Additionally, this order does not address the propriety of Nolen’s May 22, 2024
amendment of her answer and counterclaim, which is the subject of her pending
motions for leave to amend filed May 23, 2024 (Docs. 32, 33). However, to the extent
Nolen interpreted the Court’s May 2, 2024 briefing order on the motion to dismiss as
granting leave to amend her answer and counterclaim, she is mistaken. Indeed, that
order did not purport to grant leave to amend any pleading. Rather, in setting May
22, 2024, as the deadline for Nolen to file her brief in response to the Rule 12(b)(6)
motion to dismiss her third-party complaint, that order merely observed that May 22
(i.e., “21 days after service of” the motion on May 1) was “also the deadline for the
Third-Party Plaintiff to amend the third-party complaint once as a matter of course
under Fed. R. Civ. P. 15(a)(1)(B).” (Doc. 26 (emphasis added)).