United States District Court, W.D. North Carolina, Charlotte Division
C. Keesler United States Magistrate Judge
MATTER IS BEFORE THE COURT on a filing by the pro se
Plaintiff that is construed by the Court as a “Motion
To Amend Complaint” (Document No. 10) filed May 17,
2017; and Defendant's “Rule 12(b)(1) And/Or
12(b)(6) Motion To Dismiss” (Document No. 9) filed May
11, 2017. The motion to amend has been referred to the
undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b), and immediate review of both motions is now
appropriate. Having carefully considered the motion, the
record, and applicable authority, the undersigned will
grant the motion to amend, and order 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).
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).
pending motion, pro se Plaintiff Don Bradley Wallace
(“Plaintiff” or “Wallace”) contends
that the Clerk of Court failed to properly docket
Plaintiff's “Complaint” (Document No. 1)
filed on March 8, 2017. (Document No. 10). Plaintiff contends
the Complaint is missing a page and has pages out of
sequence. Id. In the interests of efficient case
management and judicial economy, the Court need not determine
the source of the alleged error in filing/docketing.
the circumstances, the Court construes the pending motion as
a request to amend the existing Complaint (Document No. 1).
Since Plaintiff's motion to amend was filed within 21
days of the pending motion to dismiss it should be allowed
“as a matter of course” pursuant to Fed.R.Civ.P.
15(a)(1)(B). Moreover, the undersigned is not persuaded there
is evidence of prejudice, bad faith, or futility to outweigh
the policy favoring granting leave to amend; therefore, the
undersigned will order Plaintiff to file an Amended Complaint
which will supersede the original Complaint. Plaintiff is
respectfully advised to consider the arguments presented in
Defendant's motion to dismiss, as well as the
requirements Rule 8 of the Federal Rules of Civil Procedure,
prior to filing an Amended Complaint.
addition, the undersigned will direct that Defendant's
“Rule 12(b)(1) And/Or 12(b)(6) Motion To Dismiss”
(Document No. 9) be denied as moot. This decision is without
prejudice to Defendant 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).
THEREFORE, ORDERED that the “Motion To Amend Complaint
” (Document No. 10) is GRANTED. Plaintiff shall file an
Amended Complaint on or before May 30, 2017.
FURTHER ORDERED that Defendant's “Rule 12(b)(1)
And/Or 12(b)(6) Motion To Dismiss” ...