MARTIN MARTINEZ v. WALMART ASSOCIATES INC (2025)

ORDER

Pro se plaintiff Martin Martinez sued Walmart Associates Inc.; Wal-Mart Stores, Inc.; and Sam's West, Inc., for alleged harassment, retaliation, and other transgressions. Dkt. 35. The defendants moved to dismiss Martinez's complaint for failure to state a claim. Dkt. 42. Martinez had 14 days to respond to that motion. Loc. R. CV-7(e). That deadline has expired, and Martinez did not respond. The court will allow Martinez additional time to respond and, in the meantime, cancel the hearing that is currently set for Monday of next week.

Martinez's amended complaint is the operative complaint. Dkt. 35. A plaintiff may amend his complaint once as a matter of course within 21 days after serving it or after service of a responsive pleading. Fed. R. Civ. P. 15(a)(1). After that, amendment is allowed only with the court's leave or the opposing party's written consent. Id. R. 15(a)(2). “[C]onsent may be implied from an act of the [opposing] party indicating an acquiescence in the amendment, especially if that act is evidenced by a writing.” 6 Mary Kay Kane & Howard M. Erichson, Federal Practice and Procedure (Wright & Miller) § 1490 (3d ed. 2025 Supp.). If the opposing party does not move to strike, but instead moves to dismiss, the amended complaint, the post-amendment motion to dismiss implies consent. Artis v. New Lond. Health Servs., No. 1:15-cv-2134-SCJ, 2016 WL 10545584, at *2 (N.D. Ga. Dec. 13, 2016) (collecting cases).

Here, Martinez amended his complaint without seeking leave of court or noting that the defendants had consented. See Dkt. 35. But the defendants did not move to strike the amended complaint. Indeed, in their motion to dismiss it, they explained that they “do not object to Plaintiff's Amended Complaint provided this Amended Complaint supersedes Plaintiff's Original Complaint.” Dkt. 42 at 2. That provides the written consent needed to make the amended complaint, which was filed by the scheduling order's deadline to file amended pleadings, Dkt. 20 at 1, the operative complaint, Fed. R. Civ. P. 15(a)(2); Artis, 2016 WL 10545584, at *2. And because the amended complaint did not specifically refer to and adopt or incorporate by reference the earlier pleading, the amended complaint superseded the original complaint and rendered it of no legal effect. See New Orleans Ass'n of Cemetery Tour Guides & Cos. v. New Orleans Archdiocesan Cemeteries, 56 F.4th 1026, 1033 (5th Cir. 2023).

The motion to dismiss was filed November 5, 2025, Dkt. 42, making Martinez's response due yesterday. See Loc. R. CV-7(e). No response was filed. The court has the inherent power to dismiss a complaint sua sponte for want of prosecution or failure to follow its orders. Link v. Wabash R.R. Co., 370 U.S. 626, 630–32 (1962); see Fed. R. Civ. P. 41(b). The court will allow Martinez until December 1, 2025, to respond to the defendants' motion to dismiss. If no response is filed by that extended deadline, the case will be subject to dismissal for want of prosecution.

It is ORDERED that:

1) the hearing scheduled for 3:30 p.m. on Monday, November 24, 2025, Dkt. 49, is CANCELLED; and

2) Martinez must file a response to the defendants' motion to dismiss, Dkt. 42, by Monday, December 1, 2025.

So ORDERED and SIGNED this 20th day of November, 2025.

Bill Davis United States Magistrate Judge