Opinion
CASE NO. 3:13-cv-187-J-34TEM
05-10-2013
BRIAN MOSS and KATHLEEN MOSS, Plaintiffs, v. BAYVIEW LOAN SERVICING, LLC, Defendant.
ORDER
This case is before the Court on Plaintiffs' Unopposed Motion for Leave to File a Second Amended Complaint (Doc. #16, Motion to Amend), filed May 6, 2013. Plaintiffs seeks to amend the First Amended Complaint (Doc. #6) in an effort to amicably resolve the issues raised by Defendant's pending Motion to Dismiss (Doc. #13). Plaintiffs aver opposing counsel has consented to the entry of an order allowing the filing of the proposed Second Amended Complaint. See Motion to Amend at 2.
Rule 15(a) of the Federal Rules of Civil Procedure states that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15; Foman v. Davis, 371 U.S. 178, 182 (1962). In the language of the Foman Court,
In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.- the leave sought should, as the rules require, be 'freely given.'Foman, 371 U.S. at 182.
This Court finds Plaintiffs' Motion to Amend is not made in bad faith, for purposes of delay, or for any suspect reason stated above. Thus, the Motion to Amend is due to be granted. Upon entry of this ruling, Defendant's Motion to Dismiss Plaintiffs' First Amended Complaint (Doc. #13) shall be rendered moot. See Malowney v. Federal Collection Deposit Group, 193 F.3d 1342, 1345 n.1 (11th Cir. 1999) (noting that '[a]n amended complaint supersedes a previously filed complaint"); Meterlogic, Inc. v. Copier Solutions, Inc., 185 F.Supp.2d 1292, 1297 (S.D. Fla. 2002) (noting that the plaintiff's filing of an amended complaint "rendered moot the parties' previous pleadings and the defendants' summary judgment and Daubert motion").
Upon due consideration it is hereby ORDERED:
1. Plaintiffs' Unopposed Motion for Leave to File a Second Amended Complaint (Doc. #16) is GRANTED.
2. The Clerk is directed to file the proposed "Second Amended Complaint," which may be found attached at Exhibit A to the instant motion.
3. Defendant shall respond to the Second Amended Complaint by May 30, 2013.
4. The pending Motion to Dismiss (Doc. #13) is DEEMED MOOT and the Clerk shall terminate the Motion to Dismiss from the pending motions in this case.
DONE AND ORDERED at Jacksonville, Florida this 10th day of May, 2013. Copies to all counsel of record
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THOMAS E. MORRIS
United States Magistrate Judge