United States District Court, W.D. North Carolina, Charlotte Division
ORDER AND RECOMMENDATION
C. KEESLER UNITED STATES MAGISTRATE JUDGE.
MATTER IS BEFORE THE COURT on “Defendants'
Motion To Dismiss Plaintiff's Complaint” (Document
No. 9) filed March 7, 2017, and “Plaintiff's Motion
To Amend Complaint” (Document No. 14) filed March 21,
2017. These motions have been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b), and
immediate review is appropriate. Having carefully considered
the motions, the record, and applicable authority, the
undersigned will grant the motion to amend, and
recommend that the pending motion to dismiss be
denied as moot.
Rule of Civil Procedure 15 applies to the amendment of
pleadings and allows a party to amend once as a matter of
course within 21 days after serving, or “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.” Fed.R.Civ.P.
15(a)(1) (emphasis added). Rule 15 further provides:
(2) Other Amendments. In all other cases, a
party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so requires.
Rule 15, a “motion to amend should be denied only where
it would be prejudicial, there has been bad faith, or the
amendment would be futile.” Nourison Rug
Corporation v. Parvizian, 535 F.3d 295, 298 (4th Cir.
2008) (citing HCMF Corp. v. Allen, 238 F.3d 273,
276-77 (4th Cir. 2001)); see also, Foman v.
Davis, 371 U.S. 178, 182 (1962). However, “the
grant or denial of an opportunity to amend is within the
discretion of the District Court.” Pittston Co.
v. U.S., 199 F.3d 694, 705 (4th Cir. 1999) (quoting
Foman, 371 U.S. at 182).
se Plaintiff has filed for leave to amend within
twenty-one (21) days of service of Defendants' Rule 12(b)
motion (Document No. 9). Pursuant to Fed.R.Civ.P.
15(a)(1)(B), the Court will allow Plaintiff to file an
Amended Complaint which will supersede the original
Complaint. Furthermore, the undersigned will respectfully
recommend that “Defendants' Motion To Dismiss
Plaintiff's Complaint” (Document No. 9) be denied
as moot. This recommendation is without prejudice to
Defendants filing a renewed motion to dismiss the Amended
Complaint, if appropriate.
well settled that a timely-filed amended pleading supersedes
the original pleading, and that motions directed at
superseded pleadings may be denied as moot. Young v. City
of Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001)
(“The general rule ... is that an amended pleading
supersedes the original pleading, rendering the original
pleading of no effect.”); see also, Colin
v. Marconi Commerce Systems Employees' Retirement
Plan, 335 F.Supp.2d 590, 614 (M.D. N.C. 2004)
(“Earlier motions made by Defendants were filed prior
to and have been rendered moot by Plaintiffs' filing of
the Second Amended Complaint”); Turner v.
Kight, 192 F.Supp.2d 391, 397 (D.Md. 2002) (quoting 6
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 1476 (2d ed. 1990)
(“A pleading that has been amended ... supersedes the
pleading it modifies .... Once an amended pleading is
interposed, the original pleading no longer performs any
function in the case.”)); Brown v. Sikora and
Associates, Inc., 311 Fed.Appx. 568, 572 (4th Cir. Apr.
16, 2008); and Atlantic Skanska, Inc. v. City of
Charlotte, 3:07-CV-266-FDW, 2007 WL 3224985 at *4 (W.D.
N.C. Oct. 30, 2007).
IS, THEREFORE, ORDERED that “Plaintiff's
Motion To Amend Complaint” (Document No. 14) is
GRANTED. Plaintiff shall file an Amended
Complaint on or before April 3, 2017.
Plaintiff's Amended Complaint should comply with the
requirements of Fed.R.Civ.P. 8, and should attach any
relevant EEOC documents including any underlying Charge of
Discrimination and Notice of Right to Sue.
IS RESPECTFULLY RECOMMENDED that
“Defendants' Motion To Dismiss Plaintiff's
Complaint” (Document No. 9) be DENIED WITHOUT