United States District Court, M.D. North Carolina
QUALITY LABELS & PACKAGING, INC. and DISTRIBUIDORA DE EMPAQUES CENTROAMERICANO, S.A., Plaintiffs,
WELLS FARGO BANK, N.A., DREW'S LOUNGE, LLC, ANDREW I. ROBERTSON, and JOHN DOES 1-5, Defendants.
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., DISTRICT JUDGE
before the court are Defendants' motion to dismiss, (Doc.
5), Plaintiffs' first amended complaint and
Plaintiffs' motion to remand, (Doc. 8). As explained
herein, this court finds that the motion to dismiss should be
denied as moot because Plaintiffs have filed a second amended
complaint. This court further finds that the motion to remand
should be denied.
BACKGROUND & PROCEDURAL HISTORY
Quality Labels & Packaging, Inc., is “in the
business of printing labels for use in textile
products.” (Second Amended Complaint (“Second Am.
Compl.”) (Doc. 6) ¶ 9.) Defendant Wells Fargo
Bank, N.A. (“Wells Fargo”) is “a national
banking institution.” (Id. ¶ 3.)
Defendant Drew's Lounge, LLC (“Drew's
Lounge”) is a corporation, owned by Defendant Andrew I.
(“Robertson”), that allegedly “opened a
Business Choice Checking Account . . . at Wells Fargo . . .
[that] was used to receive stolen funds illegally and
fraudulently obtained from Plaintiffs.” (Id.
¶¶ 4-5, 14.) Plaintiffs also identify as defendants
five unknown individuals, John Does 1-5, who allegedly
assisted in this conspiracy.
Plaintiffs allege that Defendant Robertson (through
Drew's Lounge) created fake email addresses, duped
Plaintiffs into thinking they were dealing with a real
supplier of label material, and induced Plaintiffs to
transfer thousands of dollars into the Wells Fargo accounts.
(Id. ¶¶ 15-20.) Plaintiffs bring the
following claims: (1) negligence and violation of UCC Article
4A against Wells Fargo, alleging that the bank failed to
follow know-your-customer processes and verify account
ownership; (2) conversion against all Defendants; (3) false
pretenses against Drew's Lounge, Robertson and John Does
1-5; (4) tortious interference with contracts against
Drew's Lounge, Robertson and John Does 1-5; and (5)
unfair and deceptive trade practices against all Defendants.
(Id. ¶¶ 21-56; Amended Complaint
(“First Am. Compl.”) (Doc. 2) ¶¶
initially filed this lawsuit in Forsyth County Superior
Court. The case was then removed by Defendants, who assert
that this court has jurisdiction pursuant to 28 U.S.C. §
1332 because the parties are completely diverse and the
amount in controversy alleged on the face of the first
amended complaint is greater than $75, 000.00. (Doc. 1
¶¶ 10-12.) Defendants then filed a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (See Doc.
days after the motion to dismiss was filed, Plaintiffs filed
a second amended complaint. (See Second Am. Compl.
(Doc. 6).) Plaintiffs then moved to remand the case to state
court, (Doc. 8), and submitted a brief in support of that
motion, (Pls.' Br. in Supp. of Mot. to Remand
(“Pls.' Br.”) (Doc. 9).) Defendants responded
opposing the motion to remand, (Doc. 14), and Plaintiffs
replied, (Doc. 16).
MOTION TO DISMISS
this court ultimately determines that the motion to dismiss
should be denied as moot without reaching the merits, this
court will not set forth the substantive motion to dismiss
filed a second amended complaint as a matter of course under
Fed.R.Civ.P. 15(a)(1)(B). (See Second Am. Compl.
(Doc. 6).) Because the subsequent complaint automatically
supersedes the first amended complaint, rendering it null and
void, this court finds that Defendants' motion to dismiss
the first amended complaint should be denied as moot.
See, e.g., Shoe Show, Inc. v. One-Gateway
Assocs., LLC, No. 1:14CV434, 2015 WL 1128016, at *2
(M.D. N.C. Mar. 12, 2015) (“Defendant's Motion to
Dismiss Plaintiff's Original Complaint will be denied as
moot because the Original Complaint is superseded by
Plaintiff's Amended Complaint.”) (internal
quotation marks omitted); Baucom v. Cabarrus Eye Ctr.,
P.A., No. 1:06CV00209, 2006 WL 2569079, at *1 (M.D. N.C.
Sept. 1, 2006) (“Defendant's motion to dismiss
seeks dismissal of a superceded complaint, and the court must
regard the motion as moot.”).
MOTION TO REMAND
U.S.C. § 1441 allows a defendant to remove “any
civil action brought in a State court of which the district
courts of the United States have original jurisdiction”
to federal court.
[A] party seeking to adjudicate a matter in federal court
must allege and, when challenged, must demonstrate the
federal court's jurisdiction over the matter. If a
plaintiff files suit in state court and the defendant seeks
to adjudicate the matter in federal court through removal, it
is the defendant who carries the burden of alleging in his