Mewes et al v. USA et al

Filing 33

MEMORANDUM AND ORDER,the Court is GRANTING Plaintiffs' Motion (Doc. 32 ) for Leave to File First Amended Complaint. Defendants' Motion (Doc. 25 ) to Strike and Dismiss Allegations from Plaintiffs' Complaint is DENIED as moot. Signed by Judge J. Phil Gilbert on 3/2/2016. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MISTI MEWES, individually and as Special
Administrator of the Estate of Keaton Mewes
and CHASE MEWES, individually,
Plaintiffs,

Case No. 15-cv-01019-JPG-DGW

v.
USA, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiffs’ Motion (Doc. 32) for Leave to File First
Amended Complaint and Response to Defendants’ Motion (Doc. 25) to Strike and Dismiss
Allegations from Complaint.
Federal Rule of Civil Procedure 15(a)(2) provides that “a party may amend its pleading
only with the opposing party’s written consent or the court’s leave.” It further states that the
Court should “freely give” leave to amend a pleading “when justice so requires.” In this case,
Plaintiffs acknowledge that there were “clerical issues” within their complaint as highlighted in
Defendants’ motion to dismiss. As such, Plaintiffs are requesting leave to amend their pleadings
as response with regard to Headings II and III of the Defendants’ motion to strike and dismiss.
An amended pleading supersedes the prior pleading. See Wellness Community–National
v. Wellness House, 70 F.3d 46, 49 (7th Cir.1995); Barnett v. Daley, 32 F.3d 1196, 1198 (7th
Cir.1994). “The prior pleading is in effect withdrawn as to all matters not restated in the amended
pleading, and becomes functus officio.” Nisbet v. Van Tuyl, 224 F.2d 66, 71 (7th Cir. 1955).

Therefore, a motion to amend cannot stand as a partial response to a motion to dismiss,
because the motion to dismiss would become moot upon the filing of the amended complaint. As
such, the Court is GRANTING Plaintiffs’ Motion (Doc. 32) for Leave to File First Amended
Complaint and disregarding that portion of the Plaintiffs’ Motion with regard to their response to
the remaining portions of the Defendants’ motion to strike and dismiss.

Plaintiffs are

GRANTED 14 days from the date of this order to file a first amended complaint.
Pursuant to Federal Rules of Civil Procedure 15(a)(3), the Defendants are required to
respond to the amended pleading “within the time remaining to respond to the original pleading or
within 14 days after service of the amended pleading, whichever is later.” Defendants’ Motion
(Doc. 25) to Strike and Dismiss Allegations from Plaintiffs’ Complaint is DENIED as moot.
However, if the plaintiffs fail to file an amended complaint within the time allotted, the Defendants
may motion to reinstate their motion to strike and dismiss.
IT IS SO ORDERED.
DATED: 3/2/2016
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE