Kirksey et al v. Town of Chatom, Alabama et al
ORDER re: 11 Motion to Dismiss filed by Caleb Sullivan, Town of Chatom, Alabama. The Motion is MOOT, without prejudice, as set out. Signed by Magistrate Judge Katherine P. Nelson on 11/14/2023. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
WILLIE KIRKSEY and
TOWN OF CHATOM, ALABAMA,
and CALEB SULLIVAN, Officer,
CIVIL ACTION NO. 1:23-00240-KD-N
The Plaintiffs commenced this civil action by filing a complaint with the Court
on June 28, 2023. See (Doc. 1); Fed. R. Civ. P. 3. On October 20, 2023, the Defendants
moved to dismiss the initial complaint under Federal Rule of Civil Procedure
12(b)(6). (See Doc. 11).1 In response, the Plaintiffs timely amended their complaint
once as a matter of course under Federal Rule of Civil Procedure 15(a)(1)(B) on
November 13, 2023. See (Doc. 14); Fed. R. Civ. P. 6(a)(1). As a result of the
amendment, the Rule 12(b) motion to dismiss is now directed at a pleading that is no
longer operative. See Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243
(11th Cir. 2007) (per curiam) (“As a general matter, ‘[a]n amended pleading
supersedes the former pleading; the original pleading is abandoned by the
amendment, and is no longer a part of the pleader's averments against his
adversary.’” (quoting Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V
The assigned District Judge referred said motion to the undersigned Magistrate Judge
for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72,
and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (10/20/2023 electronic reference
OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006) (citation and quotation
omitted))); Fritz v. Standard Sec. Life Ins. Co. of N.Y., 676 F.2d 1356, 1358 (11th Cir.
1982) (“Under the Federal Rules, an amended complaint supersedes the original
complaint.”). In light of this, and in Rule 15(a)(1)’s purpose, see Fed. R. Civ. P.
15(a)(1) advisory committee’s note to 2009 amendment (stating that the current
version of Rule 15(a)(1) was enacted to “force the pleader to consider carefully and
promptly the wisdom of amending to meet the arguments in [a Rule 12(b), (e), or (f)]
motion[, as a] responsive amendment may avoid the need to decide the motion or
reduce the number of issues to be decided, and will expedite determination of issues
that otherwise might be raised seriatim”),2 the Rule 12(b)(6) motion to dismiss the
initial complaint (Doc. 11) is MOOT, without prejudice to the movants’ ability to
raise the arguments therein in a new motion directed at the first amended
complaint, if appropriate. 3 The Defendants’ responses to the first amended
complaint (Doc. 14) are due in accordance with Federal Rule of Civil Procedure
DONE and ORDERED this the 14th day of November 2023.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
The undersigned expresses no opinion on whether the initial or amended
complaint would be subject to dismissal for any of the reasons stated in the present
motion to dismiss.
See Florence v. Stanback, 607 F. Supp. 2d 1119, 1120-21 (C.D. Cal. 2009) (holding
that magistrate judge did not exceed jurisdiction by denying a motion to dismiss
without prejudice to the defendants’ ability to raise the same issues in another
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