Brumfeil v. U.S. Bank et al
Filing
127
ORDER Denying as moot 9 Castle Defendants Motion to Dismiss. In addition, Plaintiffs Objection to the Recommendation ECF No. 40 is OVERRULED, given that the underlying Motion has been denied as moot. As a consequence of these rulings, the Court need not adopt nor reject the Magistrate Judges Recommendation on the Motion ECF No. 35 , and therefore it takes no action with regard to same, by Judge William J. Martinez on 5/16/2013.(ervsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-02716-WJM
LISA KAY BRUMFIEL,
Plaintiff,
v.
U.S. BANK,
LARRY CASTLE, in his individual and corporate capacity, and
CASTLE STAWIARSKI, LLC,
ROBERT J. HOPP, in his and corporate and individual capacities,
CYNTHIA MARES, Public Trustee in her official capacity,
MERS, a division of MERSCorp, and
DOES 1-100,
Defendants.
ORDER DENYING AS MOOT DEFENDANTS’ MOTION TO DISMISS
Plaintiff Lisa Kay Brumfiel (“Plaintiff”) has filed this action against Defendants
Larry Castle and Castle Stawiarski, LLC (jointly the “Castle Defendants”), U.S. Bank,
Robert J. Hopp, Cynthia Mares, MERS, and Does 1-100 (collectively the “Defendants”),
contesting the foreclosure of Plaintiff’s real property. (ECF No. 45.) This matter is
before the Court on the Castle Defendants’ Motion to Dismiss for Lack of Jurisdiction
(“Motion”) (ECF No. 9), and Magistrate Judge Michael E. Hegarty’s Recommendation
on the Motion (ECF No. 35.)
The Motion was filed on November 2, 2012. (ECF No. 9.) Subsequently,
Plaintiff’s Amended Complaint was filed on March 22, 2013. “It is well established that
an amended complaint ordinarily supersedes the original and renders it of no legal
effect.” Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (internal
quotation marks omitted). “Because the original complaint has been superseded and
nullified, there is no longer a live dispute about the propriety or merit of the claims
asserted therein; therefore, any motion to dismiss such claims is moot.” Glass v. The
Kellogg Co., 252 F.R.D. 367, 368 (W.D. Mich. 2008); Ky. Press Ass’n, Inc. v. Ky., 355
F. Supp. 2d 853, 857 (E.D. Ky. 2005) (“Plaintiff’s amended complaint supersedes the
original complaint, thus making the motion to dismiss the original complaint moot.”).
Accordingly, the Court ORDERS that, because the initial Complaint (ECF No. 1)
has been superseded by the Amended Complaint (ECF No. 45), the Castle Defendants’
Motion (ECF No. 9) is DENIED AS MOOT. In addition, Plaintiff’s Objection to the
Recommendation (ECF No. 40) is OVERRULED, given that the underlying Motion has
been denied as moot. As a consequence of these rulings, the Court need not adopt
nor reject the Magistrate Judge’s Recommendation on the Motion (ECF No. 35), and
therefore it takes no action with regard to same.
Dated this 16th day of May, 2013.
BY THE COURT:
William J. Martínez
United States District Judge
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