Cellport Systems, Inc. v. BMW of North America, LLC et al

Filing 38

MINUTE ORDER denying as moot 31 Motion to Dismiss for Failure to State a Claim by Judge Philip A. Brimmer on 10/27/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01631-PAB-KLM
CELLPORT SYSTEMS, INC.,
Plaintiff,
v.
BMW OF NORTH AMERICA, L.L.C. and
BAYERISCHE MOTOREN WERKE AG, a foreign corporation,
Defendants.

MINUTE ORDER
Entered by Judge Philip A. Brimmer
This matter is before the Court on the Motion to Dismiss Defendant BMW of
North America, LLC’s Affirmative Defenses and Counterclaims [Docket No. 31] filed by
plaintiff Cellport Systems, Inc. Plaintiff’s motion is directed at the Answer, Defenses &
Counterclaims to the Complaint [Docket No. 15] filed by defendant BMW of North
America, LLC (“BMW”). On October 21, 2014, BMW filed its Amended Answer,
Defenses & Counterclaims [Docket No. 35] as a matter of course pursuant to Fed. R.
Civ. P. 15(a)(1). Thus, the Amended Answer, Defenses & Counterclaims became the
operative pleading in this action, and plaintiff’s motion to dismiss [Docket No. 31] 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directed to an inoperative, superseded pleading.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 plaintiff’s Motion to Dismiss Defendant BMW of North America,
LLC’s Affirmative Defenses and Counterclaims [Docket No. 31] is DENIED as moot.
DATED October 27, 2014.