U.S. Advisor, LLC et al v. Berkshire Property Advisors, LLC

Filing 60

ORDER denying as moot 22 Plaintiffs' Motion to Dismiss Defendant's Counterclaim, by Judge Philip A. Brimmer on 6/21/09.(ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Action No. 09-cv-00697-PAB-CBS U.S. ADVISOR, LLC, USA ENCLAVE AT BELLEVIEW USA ENCLAVE AT BELLEVIEW USA ENCLAVE AT BELLEVIEW USA ENCLAVE AT BELLEVIEW

STATION, DST, STATION, LLC, STATION SPE, LLC, and STATION LEASECO, LLC, Plaintiffs,

v. BERKSHIRE PROPERTY ADVISORS, LLC, Defendant. _____________________________________________________________________ ORDER _____________________________________________________________________ This matter is before the Court on plaintiffs' Motion to Dismiss [Docket No. 22] defendant's Counterclaim. On May 19, 2009, 2009, defendant filed the First Amended Counterclaim [Docket No. 28] as a matter of course under Fed. R. Civ. P. 15(a)(1). On May 26, 2009, defendant filed a motion for leave to file a second amended counterclaim [Docket No. 37], which was granted on June 1, 2009 [Docket No. 49]. Thus, the Second Amended Counterclaim [55] became the operative counterclaim, and plaintiffs' Motion to Dismiss [Docket No. 22] is directed to an inoperative, superseded pleading.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. It is

ORDERED that plaintiffs' Motion to Dismiss [Docket No. 22] is DENIED as moot.

DATED June 21, 2009. BY THE COURT:

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

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