Elliott et al v. Thompson National Properties, LLC et al

Filing 53

ORDER Defendants Motions to Dismiss ECF Nos. 22 and 27 are DENIED AS MOOT. Plaintiffs are DIRECTED to re-file their Further Amended Complaint, which was appended as an exhibit to their motion for leave to file an amended complaint ECF No. 42 . Plaintiffs are advised to carefully ensure that their re-filed Further Amended Complaint is fully consistent with Judge Boland's Recommendation Order ECF No. 51 , and the Courts Order adopting same. ECF No. 52 . Such filing is to be made no later than 5 p.m., November 20, 2013. by Judge William J. Martinez on 11/8/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-0160-WJM-BNB
DARRELL S. ELLIOTT,
DIANE ELLIOTT, and
DARRELL S. ELLIOTT PSP
Plaintiffs,
v.
THOMPSON NATIONAL PROPERTIES, LLC, a Delaware limited liability company,
TNP 12% NOTES PROGRAM, LLC,
TNP STRATEGIC RETAIL TRUST, INC., and
ANTHONY W. THOMPSON
Defendants.

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
PURSUANT TO RULE 12(b)(6) AS MOOT

This matter is before the Court on the Motions filed by Defendants TNP Strategic
Retail Trust, Inc. (ECF No. 22) and Anthony W. Thompson (ECF No. 27) (“Defendants”),
respectively. Plaintiffs have filed responses to each of these motions (ECF Nos. 43,44),
and Defendants a reply. (ECF Nos. 48, 49.)
For the reasons set forth below, the Court denies each of Defendants’ Motion to
Dismiss on moot.
I. DISCUSSION
Defendants’ Motions were filed on March 14, 2013 and April 2, 2013, respectively.
(ECF No. 22, 27.) Plaintiffs subsequently filed a Further Amended Complaint on April
23, 2013. (ECF No. 42-1). As this was Plaintiff’s second amended complaint, Plaintiff
moved the Court to accept same as the operative complaint. (ECF No. 42). That motion

was opposed by Defendants. ECF No. 47. On September 19, 2013, U.S. Magistrate
Judge Boyd N. Boland’ Recommendation (ECF No. 51) GRANTED Plaintiffs’ Motion in
part and denied in part. Plaintiffs' Motion was denied insofar as Plaintiffs sought to add a
Third Claim for violations of the federal securities laws. Plaintiffs motion was granted in
all other respects.
On November 4, 2013, the Court adopted Judge Boland’s Recommendation.
(ECF No. 52.) As such, the Further Amended Complaint exhibited to Plaintiffs’ Motion to
Amend Complaint superseded previous complaints in the record. (ECF No. 42-1)
With respect to disposition of Defendants’ Motions to Dismiss, 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). It
follows that because an 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.”).
Here, similarly, because the Amended Complaint at ECF No. 42-1 supersedes
previous complaints in the record, Defendants’ Motions to Dismiss are moot. (ECF Nos.
22, 27). The Court takes no view on the merits of Defendants’ Motions as to the
previous complaint. As such, both of the Motions to Dismiss are denied without
prejudice. See Glass, 252 F.R.D. at 368; Ky. Press Ass’n, Inc. F. Supp. 2d at 857.

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II.CONCLUSION
1.

Defendants’ Motions to Dismiss (ECF Nos. 22 and 27) are DENIED AS
MOOT.

2.

Plaintiffs are DIRECTED to re-file their Further Amended Complaint, which
was appended as an exhibit to their motion for leave to file an amended
complaint (ECF No. 42). Plaintiffs are advised to carefully ensure that their
re-filed Further Amended Complaint is fully consistent with Judge Boland's
Recommendation Order (ECF No. 51), and the Court’s Order adopting
same. (ECF No. 52.) Such filing is to be made no later than 5 p.m.,
November 20, 2013.

Dated this 8 th day of November, 2013.
BY THE COURT:

_________________________
William J. Martínez
United States District Judge

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