Smith v. Legacy Yachts, Inc.

Full title: LEO SMITH and SUE SMITH, Plaintiffs, v. LEGACY YACHTS, INC. and JOSEPH…

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Jul 28, 2008

Case No. 8:08-CV-1105-T-30EAJ (M.D. Fla. Jul. 28, 2008)

Opinion

Case No. 8:08-CV-1105-T-30EAJ.

July 28, 2008

ORDER

JAMES MOODY JR., District Judge

THIS CAUSE comes before the Court upon Defendant Joseph Garasic's Motion to Dismiss (Dkt. #5) and Plaintiffs' response in opposition thereto (Dkt. #8) and Amended Unopposed Motion for Leave to Amend Complaint (Dkt. #10). Plaintiffs ask the Court to deny Defendant's Motion to Dismiss and permit them to file an amended complaint to "properly present their case." Before filing their motion, Plaintiffs conferred with opposing counsel, see Local Rule 3.01(g), who does not object to said motion. Having considered the parties' motions and being otherwise advised of the premises therein, the Court finds that Plaintiffs' request to amend their complaint should be granted.

Defendants have yet to file a responsive pleading in this matter.¹ Accordingly, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, Plaintiffs are entitled to amend the complaint once as a matter of course without leave of court. Plaintiffs are cautioned, however, that an amended complaint completely supersedes the original complaint, and once a complaint is amended, the only issues before the Court are the ones raised in the text of the amended complaint. See Fritz v. Standard Life Ins. Co., 676 F.2d 1356, 1358 (11^th Cir. 1982).

1 A motion to dismiss is not a responsive pleading. See Williams v. Board of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1291 (11^th Cir. 2007); Chilivis v. SEC, 673 F.2d 1205, 1209 (11th Cir. 1982); American Civil Liberties Union of Florida, Inc. v. Miami-Dade County School Bd., 439 F.Supp. 2d 1242, 1260 (S.D. Fla. 2006); Cascella v. Canaveral Port Dist., 2005 WL 2105956, at *2 (M.D. Fla.).

It is therefore ORDERED and ADJUDGED that:

1. Defendant Garasic's Motion to Dismiss (Dkt. #5) is DENIED.

2. Plaintiffs' Amended Unopposed Motion for Leave to Amend Complaint (Dkt. #10) is GRANTED. Plaintiffs shall, within ELEVEN (11) DAYS hereof, file their Amended Complaint. Defendants shall have TWENTY (20) DAYS within which to file an answer to the Amended Complaint.

DONE and ORDERED.