Cummings v. Mitchell et al

Filing 36

ORDER denying as moot 9 Motion to Dismiss; denying as moot 10 Motion to Dismiss. Signed by Chief Judge J. Randal Hall on 09/20/2019. (thb)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
*

ALICIA CUMMINGS,

■Jr
■k

Plaintiff,

•k

*

V

CV

118-161

LAYNE MITCHELL, LEWIS GOLDEN,
and AU MEDICAL CENTER, INC.
and Its Predecessors and
Successors,
Defendants.

ORDER

Before

the

Court

are

Defendants'

motions

to

Plaintiff's original complaint filed on February 4, 2019.

9,

10. )

complaint. 1

On

February

(Doc. 15. )

26,

2019,

Plaintiff

filed

an

dismiss

(Docs.

amended

''It is well-established that an amended

1 Pursuant to Federal Rule of Civil Procedure 15, "A party may amend its pleading
once as a matter of course within: (A) [twenty-one] days after serving it, or

(B) if the pleading is one to which a responsive pleading is required,

[twenty-

one] days after service of a responsive pleading or [twenty-one] days after
service of a motion under Rule 12(b),

R. Civ. P. 15(a) (1) .

(e), or (f) , whichever is earlier."

Fed.

"In all other cases, a party may amend its pleading only

with the opposing party's written consent or the court's

leave."

Id.

at

15(a) (2) .

On February 19, 2019, the Court granted Plaintiff's consent motion for an
extension of time to respond to Defendants' motions to dismiss (Consent Motion,
Doc. 11) .
(Consent Order, Doc. 12. )
The Consent Order extended Plaintiff's
deadline to respond through February 26, 2019.
(Id. )
On February 26, 2019,
Plaintiff filed her amended complaint, twenty-two days after Defendants filed
their motions to dismiss.
Although the Consent Order granted Plaintiff an
extension of time to respond to Defendants' motions to dismiss, it neither
extended Plaintiff's time to file an amended complaint as a matter of right nor

granted leave to file an amended complaint.

Consequently, Plaintiff could only

file the amended complaint with "the opposing party's written consent."
In the Consent Motion, the parties state: "All parties are aware that in
lieu of a response to the [m]otions to [djismiss. Plaintiff will be filing an
[a]mended [cjomplaint, which will moot the current [m]otions to [d]ismiss."

complaint

super[s]edes

an

original

complaint

original complaint without legal effect."
Mid-Atl.^

Inc.

v.

Franklin

and

renders

the

Renal Treatment Ctrs.—

Chevrolet-Cadillac-Pontiac-GMC,

No.

608CV087, 2009 WL 995564, at *1 (S.D. Ga. Apr. 13, 2009) (quoting
In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922,

928 (8th Cir. 2005)) (citing Fritz v. Standard Sec. Life Ins. Co.

of N.Y., 676 F.2d 1356, 1358 (11th Cir. 1982)); accord Malowney v.
Fed. Collection Deposit Grp., 193 F.3d 1342, 1345 n.l (11th Cir.

1999) (^'An amended complaint supersedes an original complaint.").
Here, Plaintiff's amended complaint supersedes her original

complaint.

Accordingly, IT IS HEREBY ORDERED that Defendants'

motions to dismiss Plaintiff's original complaint (Docs. 9, 10)
are DENIED AS MOOT.

ORDER

ENTERED

at

Augusta,

Georgia,

this

day

of

September, 2019.

J. RANfll^I^HAI/L, CH:^F JUDGE
UNITED S?ATES DISTRICT COURT
DISTRICT OF GEORGIA

(Consent Motion, at 2.)

The Court could construe this statement as Defendants

consenting to Plaintiff filing the amended complaint.

However, even if this

statement is insufficient under Rule 15, the Court retroactively allows the

amended complaint, and the amended complaint is deemed the operative complaint
as of its filing date, February 26, 2019. First, "[t]he court should freely
give leave when justice so requires." Id. Second, "[o]rdinarily, a party must
be given at least one opportunity to amend before the district court dismisses
the complaint." Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005)
(per curiam).
Third, even if Defendants did not expressly consent, they
certainly have not objected to the filing of the amended complaint.