1020 15th Street, Inc. v. Gallager's Steakhouse-Grand Central Oyster Bar Franchising, Inc.

Filing 23

ORDER denying as moot 4 Gallaghers Steakhouse-Grand Central Oyster Bar Franchising, Inc.s motion to dismiss by Judge Philip A. Brimmer on 02/13/2009.(sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer

Civil Action No. 08-cv-01639-PAB-BNB (Consolidated with Civil Action No. 08-cv-01896-PAB-BNB) GALLAGHER'S NYC STEAKHOUSE FRANCHISING, INC., Plaintiff, v. 1020 15th STREET, INC. and BRUCE RAHMANI, Defendants. ________________________________________________________ Civil Action No. 08-cv-01896-PAB-BNB 1020 15th STREET, INC., Consolidated Plaintiff, v. GALLAGER'S (sic) STEAKHOUSE-GRAND CENTRAL OYSTER BAR FRANCHISING, INC., Consolidated Defendant. ______________________________________________________________________________ ORDER ______________________________________________________________________________ On September 5, 2008, while Civil Action No. 08-cv-01896-WYD-KLM was pending before Chief Judge Wiley Y. Daniel, defendant Gallagher's Steakhouse-Grand Central Oyster Bar Franchising, Inc. filed a motion to dismiss [Docket No. 4] the complaint of plaintiff 1020 15th St., Inc. Chief Judge Daniel ordered 1020 15th St., Inc. to respond to the motion to dismiss no later than November 24, 2008 [Docket 08-cv-

01896, No. 18]. At a November 25, 2008 hearing, I granted a motion to consolidate Civil Action No. 08-cv-01896-WYD-KLM with Civil Action No. 08-cv-01639-PAB-BNB. I also granted an oral motion by 1020 15th St., Inc. for an extension of time until 5:00 p.m. the following day to file a response to Gallagher's Steakhouse-Grand Central Oyster Bar Franchising, Inc.'s motion to dismiss [Docket 08-cv-01639, No. 52]. A response was not forthcoming. Instead, on November 26, 2008, 1020 15th St., Inc. filed a "Notice of Filing First Amended Complaint" [Docket 08-cv-01896, No. 19]. On December 2, 2008, 1020 15th St., Inc. corrected the deficiencies in the November 26 filing by submitting a motion for leave to file its first amended complaint [Docket 08-cv01639, No. 54]. This motion was ultimately granted [Docket 08-cv-01639, No. 58] and an amended complaint was filed on December 10, 2008 [Docket 08-cv-01639, No. 59]. Thus, as of December 10, 2008, the operative pleading was the First Amended Complaint. Gallagher's Steakhouse-Grand Central Oyster Bar Franchising, Inc.'s motion to dismiss is therefore directed at an inoperative, superseded pleading. See, e.g., Gilles v. United States, 906 F.2d 1386, 1389 (10th Cir. 1990) ("[A] pleading that has been amended under Rule 15(a) supersedes the pleading it modifies . . . .") (internal quotation marks omitted). As such, the motion to dismiss is moot. Therefore, it is

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ORDERED that Gallagher's Steakhouse-Grand Central Oyster Bar Franchising, Inc.'s motion to dismiss [Docket 08-cv-01896, No. 4] is DENIED as moot. DATED February 13, 2009. BY THE COURT:

s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

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