Hervis v. City of Miami

Filing 12

ORDER denying as moot 8 Motion to Dismiss. See attached ORDER for details. Signed by Judge Robert N. Scola, Jr. on 8/9/12. (jky)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-22418-Civ-SCOLA
MIGUEL A. HERVIS,
Plaintiff,
vs.
CITY OF MIAMI,
Defendant.
_________________________/
ORDER DENYING MOTION TO DISMISS AS MOOT
THIS MATTER is before the Court on the Defendant City of Miami’s Motion to Dismiss
[ECF No. 8], filed on August 3, 2012. Subsequently, on August 9, 2012, the Plaintiff filed an
Amended Complaint [ECF No. 10].
Federal Rule of Civil Procedure 15(a) allows a party to amend the pleadings “once as a
matter of course” if done within “21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b),” whichever comes first. Fed. R. Civ. P. 15(a)(1)(B). “For
purposes of this Rule, a motion to dismiss is not a responsive pleading.” Williams v. Bd. of
Regents of the Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007).
Here, the Plaintiff filed the Amended Complaint six days after Defendant filed its Motion
to Dismiss. Therefore, Plaintiff’s amendment must be allowed as a matter of course, and does
not require permission from the Court. “When the plaintiff has the right to file an amended
complaint as a matter of course,” which is the case here, “the plain language of Rule 15(a)
shows that the court lacks the discretion to reject the amended complaint[.]” See id. at 1293 n.6
(emphasis original).
Further, because Plaintiff’s Amended Complaint supersedes the prior Complaint,
Defendant’s Motion to Dismiss the original Complaint is now moot. See Taylor v. Alabama, 275
F. App’x 836, 838 (Cir. 11th 2008) (noting that when “Plaintiffs amended their complaint,” the
“Defendants’ motion to dismiss became moot”).

Therefore, it is hereby ORDERED and ADJUDGED that the Defendant’s Motion to
Dismiss [ECF No. 8] is DENIED AS MOOT, in light of the newly-filed Amended Complaint.

DONE and ORDERED in chambers, at Miami, Florida August 9, 2012.

________________________________
ROBERT N. SCOLA, JR.
UNITED STATES DISTRICT JUDGE
Copies to:
U.S. Magistrate Judge
Counsel of record