1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 STEVE F. TIBBETTS and No. 2:23-cv-00596-JAM-CKD

TABERLYN TIBBETTS,

10 Plaintiffs, 11

ORDER DENYING DEFENDANT

v.

NATIONSTAR’S MOTION TO DISMISS

12

13 KELLER MORTGAGE, LLC, dba

KELLER MORTGAGE, ET AL.,

14 Defendants. 15 16 Before the Court is Defendant Nationstar Mortgage LLC’s 17 motion to dismiss Plaintiffs’ claims against Nationstar for 18 defamation and injunctive relief. See Mot. to Dismiss (“Mot.”), 19 ECF No. 34. Plaintiffs filed an opposition to Nationstar’s 20 motion. Opp’n., ECF No. 40. Plaintiffs argue Nationstar has 21 filed answers against Plaintiffs’ previous complaints containing 22 “the exact same language” as the currently active third amended 23 complaint (“TAC”). Id. Plaintiffs contend the TAC does not 24 revive Nationstar’s right to file a post-answer Rule 12(b)(6) 25 motion. Id. Nationstar did not file a reply. For the reasons 26 set forth below, the Court denies Nationstar’s motion.1 27 1This motion is determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). 1 I. OPINION 2 Pursuant to Federal Rules of Civil Procedure Rule 12(b), a 3 motion asserting a Rule 12(b)(6) defense must be brought prior to 4 filing a responsive pleading. Although an amended complaint 5 generally “wipes out” a prior complaint, district courts in this 6 circuit have followed a general rule that an amended complaint 7 does not allow defendants to raise Rule 12(b) defenses that they 8 could have raised against a previous complaint. Power Probe 9 Grp., Inc. v. Innova Elecs. Corp., No. 2:21-cv-00332-GMN-EJY, 10 2023 U.S. Dist. LEXIS 204329, at *5 (D. Nev. Apr. 27, 2023); Best 11 Fresh LLC v. Vantaggio Farming Corp., No. 3:21-cv-00131-BEN-WVG, 12 2022 U.S. Dist. LEXIS 162581, at *31 (S.D. Cal. Sep. 7, 2022); 13 Townsend Farms v. Goknur Gida Madderleri Enerji Imalat Ithalat 14 Ihracat Ticaret Ve Sanayi A.S., No. SA CV 15-0837-DOC (JCGx), 15 2016 U.S. Dist. LEXIS 195933, at *17 (C.D. Cal. Aug. 17, 2016); 16 Brooks v. Harlon Rip Caswell, No. 3:14-cv-01232-AC, 2016 U.S. 17 Dist. LEXIS 26832, at *8 (D. Or. Mar. 2, 2016). If a defendant 18 filed an answer to a previous complaint, only new allegations and 19 arguments in the amended complaint will create a basis for a Rule 20 12(b) motion. Best Fresh LLC, 2022 U.S. Dist. LEXIS 162581, at 21 *34. For Rule 12(b)(6) motions, “[a]llowing a post-answer motion 22 to dismiss on an amended complaint where the amendment merely 23 substantiates existing claims would render the Rule 12(b) 24 restriction on post-answer motions meaningless.” Brooks, 2016 25 U.S. Dist. LEXIS 26832, at *8. 26 Here, the TAC alleges the same causes of action as 27 Plaintiffs’ previous complaints for defamation and injunctive 28 relief. Compare TAC at 13-15, with Compl. at 11-12, Exh. 1 to nee en enn enn oon en nn EO EI OE

1 Notice of Removal, ECF No. 1 at 20-21, First Amended Compl. 2 (“FAC”) at 12-13, ECF No. 8, and Second Amended Compl. (“SAC”) at 3 12-14, ECF No. 17. There are no new allegations or arguments 4 against Nationstar concerning these two causes of actions. 5 | Nationstar filed answers to Plaintiffs’ first and second amended 6 complaints, arguing general denials against the two causes of 7 actions. Nationstar Answer to FAC at 9-10, ECF No. 10; 8 Nationstar Answer to SAC at 8-9, ECF No. 20. Because Nationstar 9 filed answers against Plaintiffs’ prior complaints and the TAC 10 does not add any new matter that creates a new basis for a Rule 11 12 (6b) (6) motion, Nationstar’s motion cannot be considered by this 12 Court. The Motion is denied. 13 Il. ORDER 14 For the reasons set forth above, the Court DENIES Defendant 15 | Nationstar’s Motion to Dismiss in its entirety. 16 IT IS SO ORDERED. 17 Dated: February 16, 2024 18 cp,

JOHN A. MENDEZ

20 SENIOR UNITED*STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28