United States District Court, W.D. North Carolina, Statesville Division
C. Keesler United States Magistrate Judge.
MATTER IS BEFORE THE COURT on “Plaintiff
Joseph Savovic's Motion For Leave To Amend
Complaint” (Document No. 17) and “Defendant
William S. Short's Motion To Dismiss” (Document No.
4). The parties have consented to Magistrate Judge
jurisdiction pursuant to 28 U.S.C. § 636(c), and
immediate review is appropriate. Having carefully considered
the motion, the record, and applicable authority, the
undersigned will grant the motion to amend and
deny the motion to dismiss.
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
(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).
seeks to file an Amended Complaint to address “issues
raised in the Defendants' Answer, Motions, and Rule 26
disclosures of the Parties.” (Document No. 17, p.1).
Plaintiff's motion asserts that the request to amend is
timely because it was filed by the date agreed upon by the
parties to join additional parties or amend the pleadings.
Id. See also (Document No. 11, p. 3).
response, Defendants object to Plaintiff's request
because Plaintiff's counsel failed to confer with counsel
for Defendants about the motion to amend, and the motion
failed to show that the parties had conferred as required by
Local Rule 7.1(b). (Document No. 18). Defendants also note
that there is no reference to any deadline to file amended
pleadings in the “Pretrial Order And Case Management
Plan” (Document No. 12).
undersigned is not persuaded there is sufficient evidence of
prejudice, bad faith, or futility to outweigh the policy
favoring granting leave to amend. In fact, Defendants'
opposition does not allege any prejudice, bad faith, or
futility here. (Document No. 18). The undersigned agrees that
Plaintiff's counsel should have conferred with
Defendants' counsel prior to filing the motion; however,
the undersigned will decline to deny this motion on that
basis. See Local Rule 7.1(b). While the
“…Case Management Plan” does not
specifically provide for a date to file amended pleadings, it
also does not preclude any party from seeking to amend
pursuant to Fed.R.Civ.P. 15. (Document No. 12). Moreover, the
record is clear that on or about March 22, 2018, counsel for
the parties agreed that they should be allowed “to join
additional parties or otherwise amend the pleadings” on
or before May 3, 2018. (Document No. 11, p. 3). The pending
motion to amend was filed on May 3, 2018. (Document No. 17).
on the foregoing, the undersigned will allow Plaintiff to
file an Amended Complaint which supersedes the original
Complaint. In addition, the undersigned will direct that
“Defendant William S. Short's Motion To
Dismiss” (Document No. 4) be denied as moot. Defendants
may file a renewed motion to dismiss the Amended Complaint,
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, Fawzy
v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017)
(“Because a properly filed amended complaint supersedes
the original one and becomes the operative complaint in the
case, it renders the original complaint ‘of no
effect.'”); 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”); 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,
undersigned observes that the dispute over the motion to
amend might have been avoided had counsel properly conferred
and treated each other with the degree of
professional courtesy expected by this Court. Both sides are
respectfully advised to become familiar with the Local Rules