IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:14-CV-537-RJC-DCK
THIS MATTER IS BEFORE THE COURT regarding “Defendants Zhang And Liu’s
Motions To Dismiss…” (Document No. 23); the “Motion Of Scott Paul To Dismiss Complaint
Or To Transfer Venue” (Document No. 28); and the “Motion For Judicial Notice In Support Of
Scott Paul’s Motion To Dismiss…” (Document No. 29). This matter has been referred to the
undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b), and immediate review is
appropriate. Having carefully considered the motions, the record, and the applicable authority,
the undersigned will respectfully recommend that the motions be denied as moot, without
prejudice to re-file.
STANDARD OF REVIEW
Federal 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 further provides:
INDUSTRIAL PIPING, INC., )
)
Plaintiff, )
)
v. ) MEMORANDUM AND
)
)
RECOMMENDATION
TAO ZHANG, et al., )
)
Defendants. )
)
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(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.
Fed.R.Civ.P. 15(a)(2).
DISCUSSION
Plaintiff filed its original “Complaint” (Document No. 1) on September 30, 2014, and
then pursuant to Rule 15(a)(1)(B), filed a “First Amended Complaint…” (Document No. 37) on
January 2, 2014. Plaintiff’s “First Amended Complaint…” appears to have been timely filed.
It is 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and that motions directed at superseded pleadings may be denied as moot.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, because the “First Amended Complaint…” (Document No. 37) supersedes the
original “Complaint” (Document No. 1), the undersigned will respectfully recommend that
Defendants’ motions to dismiss (Document Nos. 23 and 28), as well as the “Motion For Judicial
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Notice In Support Of Scott Paul’s Motion To Dismiss…” (Document No. 29), be denied as
moot. This recommendation is without prejudice to Defendants filing renewed motions to
dismiss, if appropriate.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
“Defendants Zhang And Liu’s Motions To Dismiss…” (Document No. 23); the “Motion Of
Scott Paul To Dismiss Complaint Or To Transfer Venue” (Document No. 28); and the “Motion
For Judicial Notice In Support Of Scott Paul’s Motion To Dismiss…” (Document No. 29) be
DENIED AS MOOT.
V. TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14)
days of service of same. Responses to objections may be filed within fourteen (14) days after
service of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum
and Recommendation with the District Court constitutes a waiver of the right to de novo review
by the District Court. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005).
Moreover, failure to file timely objections will preclude the parties from raising such objections
on appeal. Diamond, 416 F.3d at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003);
Snyder v. Ridenhour, 889 F.2d 1363, 1365 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 147-
48 (1985), reh'g denied, 474 U.S. 1111 (1986).
IT IS SO RECOMMENDED.
Signed: January 12, 2015
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