Branch Banking and Trust Company v. Imagine CBQ, LLC et al

Filing 42

ORDER finding as moot 31 Motion to Dismiss for Lack of Jurisdiction; finding as moot 32 Motion to Amend/Correct Motion to Dismiss, without prejudice to the ability of these defendants to re-file same should Judge Kristi K. DuBose deny plaintiff's unopposed 36 Motion for leave to amend its complaint. Signed by Magistrate Judge William E. Cassady on 11/7/2011. copies to parties (sdb)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION BRANCH BANKING AND TRUST COMPANY, : : Plaintiff, : vs. CA 11-0168-KD-C : IMAGINE CBQ, LLC, et al., : Defendants. ORDER On October 11, 2011, defendants Imagine CBQ, LLC, Imagine Enterprises, LLC, Frances W. Hopkins, Joseph Overton, and Bonnie L. Reiman filed a motion to dismiss plaintiff’s complaint for lack of subject matter jurisdiction since the complaint only contained allegations regarding the residency of various defendants, not their citizenship. (See Doc. 31.) One day later, these defendants amended their motion to dismiss to apprise this Court that they did not object to “plaintiff amending its complaint to properly secure the jurisdiction of this Court.” (Doc. 32.) On October 14, 2011, plaintiff filed an unopposed motion for leave to amend its complaint and thereby correct its pleading to allege the citizenship of all the defendants, as opposed to their residences. (See Doc. 36.) The undersigned entered a submission order regarding this particular motion to dismiss on October 17, 2011 (Doc. 38); plaintiff was given until October 26, 2011 to file a response and the moving defendants until November 3, 2011 to file their reply (id.). Plaintiff filed a response that same date and directed the Court to its unopposed motion for leave to amend the complaint as its response to the pending motion to dismiss. (Doc. 39.) The moving defendants did not file a reply. (See Docket Sheet.) In light of the foregoing, the undersigned MOOTS the moving defendants’ motion to dismiss (Doc. 31), as amended (Doc. 32), without prejudice to the ability of these defendants to re-file same should United States District Judge Kristi K. DuBose deny plaintiff’s unopposed motion for leave to amend its complaint (Doc. 36). DONE and ORDERED this the 7th day of November, 2011. s/WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE 2

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