Kruse v. Byrne et al
ORDER denying 67 Motion to Stay as further set out. Signed by Magistrate Judge William E. Cassady on 7/5/2012. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
FRANK KRUSE, as representative of the
Estate of Jacob Jordan, deceased,
DALE BRYANT, et al.,
Motions to dismiss claims asserted in the plaintiff’s first amended complaint
have been filed by all but one defendant. 1 At the request of the parties, the undersigned
extended the deadlines to file responses and replies to those motions. (See Doc. 57.)
Responses to the motions have been filed. (See supra note 1.) Replies are due tomorrow,
July 6, 2012. (See Doc. 57.)
Defendants Byrne and Wasdin’s motion to dismiss or, in the alternative, motion
for summary judgment as to Count I of the plaintiff’s amended complaint (Doc. 29; see also Doc.
30 (memorandum in support)) is fully briefed and ripe for consideration. (See Docs. 43 & 58.)
Defendant Baldwin County Commission’s motion to dismiss or, in the alternative, motion for
summary judgment as to the claims asserted against it in the plaintiff’s amended complaint
(Doc. 44; see also Doc. 45 (memorandum in support)) was filed May 9, 2012. The Court’s docket,
however, does not reflect that a response to this motion was filed. Defendant Charles E.
Sherman, M.D.’s motion to dismiss the claims asserted against him in the plaintiff’s amended
complaint (Doc. 46) was filed May 9, 2012. A response to that motion (Doc. 63) was filed June
22, 2012. Defendants Rocky Lee Langham and Steve R. Drinkard’s motion to dismiss the claims
asserted against them in the plaintiff’s amended complaint (Doc. 48; see also Doc. 49
(memorandum in support)) was filed May 10, 2012. A response to that motion (Doc. 64) was
filed June 22, 2012. Defendants Connie Pimperl, Jimmie Williams, and Kenneth May’s motion
to dismiss the claims asserted against them in the plaintiff’s amended complaint (Doc. 53; see
also Doc. 54 (memorandum in support)) was filed May 11, 2012. A response to that motion
(Doc. 64) was filed June 22, 2012. Defendant Edward Scott’s motion to dismiss and brief in
support (Docs. 59 & 60) was filed May 18, 2012. A response to that motion (Doc. 64) was filed
June 22, 2012. Defendant Gregory E. Pinkard filed a waiver of service on June 13, 2012 (Doc.
62). His response to the first amended complaint is due August 8, 2012. (See id.)
On July 2, 2012, the plaintiff filed a motion for leave to file a second amended
complaint (Doc. 66), stating that “[t]he proposed Second Amended Complaint attached
[to the motion for leave] clarifies and alleges more specifically the breaches in the
standard of care that Dr. Sherman committed” and “adds medical negligence claims
against Defendants May, Williams and Pimperel - three nurses who were added as
parties in the first amended complaint.” (Id., ¶¶ 6 & 7.)
Now pending before the undersigned is a motion to stay “any responses and/or
replies that are due in regards to Plaintiff’s First Amended Complaint” (Doc. 67), filed
by ten of the eleven defendants on July 3, 2012. For the reasons stated below, the
motion to stay is DENIED.
While a motion for leave to amend the currently operative complaint has been
filed and referred to the District Judge, the undersigned notes that an amendment to a
complaint does not automatically render moot the grounds raised in a motion to
dismiss the previously operative complaint, see, e.g., Bimler v. Stop & Shop Supermarket
Co., 965 F. Supp. 292, 296 (D. Conn. 1997) (citing Bernstein v. N.V. Nederlandsche–
Amerikaansche Stoomvaart–Maatschappij, 76 F. Supp. 335 (S.D.N.Y. 1948)); New Hampshire
Ins. Co. v. Home Sav. & Loan Co. of Youngstown, No. 4:05-cv-02179, 2008 WL 2446066, at *2
n.1 (N.D. Ohio June 16, 2008), vacated and reversed on other grounds, 581 F.3d 420 (6th Cir.
This is especially true where—like here—the amended complaint is
“substantially identical to the original complaint.” Smith v. GE Aviation, No. 3:10–cv–13,
2011 WL 2790166, at *1 (S.D. Ohio July 15, 2011) (quoting Mata–Cuellar v. Tenn. Dep’t of
Safety, No. 3:10–0619, 2010 WL 3122635, at *2 (W.D. Tenn. Aug. 6, 2010). In Smith, the
only differences between the operative complaint and its previous incarnation were
additional facts alleged in support of one claim and the addition of another claim. See
Similar to that case, here, the plaintiff represents that his amendment merely
“clarifies and alleges” Defendant Sherman’s alleged breaches in the standard of care
and adds a claim against three defendants. (Doc. 66, ¶¶ 6 & 7.) The undersigned,
therefore, believes—assuming the District Judge grants the motion for leave to amend—
that the briefing the parties have already provided, and will provide shortly, will go a
long way (if not most of the way) towards resolving any subsequent motions to dismiss
the second amended complaint.
If a second amended complaint is filed, the undersigned anticipates a conference
with the parties to discuss the efficient resolution of pre-answer motions.
meantime, replies remain due tomorrow, July 6, 2012. (See Doc. 57.)
DONE and ORDERED this the 5th day of July, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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