Synergy Projects, Inc v. Green et al

Filing 53

ORDER denying without prejudice 38 Motion for Partial Summary Judgment Against Edward R. Green (see text of Order). Signed by Chief Judge Linda R Reade on 2/5/2015 (copy w/NEF mailed to pro se parties). (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
SYNERGY PROJECTS, INC.,
Plaintiff,

No. 14-CV-10-LRR

vs.

ORDER

EDWARD R. GREEN et al.,
Defendants.
____________________
The matter before the court is Plaintiff Synergy Projects, Inc.’s (“Synergy”)
“Motion for Partial Summary Judgment Against Edward R. Green” (“Motion”) (docket
no. 38).
On February 6, 2014, Synergy filed an Amended Complaint (docket no. 4). On May
8, 2014, Green filed an Answer to the Amended Complaint (docket no. 9). On October 15,
2014, Synergy filed a Motion for Leave to File Second Amended Complaint (docket no.
34). On October 22, 2014, the court granted the Motion for Leave to File Second
Amended Complaint. October 22, 2014 Order (docket no. 36). On October 23, 2014,
Synergy filed the Motion. On October 29, 2014, the Second Amended Complaint was
separately docketed (docket no. 39). Green has not responded to the Motion or the Second
Amended Complaint and the time for doing so has passed.
Synergy electronically filed the Motion for Leave to File Second Amended
Complaint and attached the proposed Second Amended Complaint in compliance with Local
Rule 15. Although it is clear that Synergy mailed to Green copies of the Motion for Leave
to File Second Amended Complaint, it is unclear whether Synergy included copies of the
proposed Second Amended Complaint in that mailing. Compare Motion for Leave to File
Second Amended Complaint at 4, with Proposed Second Amended Complaint (docket no.
34-1) at 27. The Clerk of Court mailed to Green the Second Amended Complaint after it

was docketed on October 29, 2014. See Second Amended Complaint docket entry text.
It is unclear, therefore, whether Green had notice of the content of the Second Amended
Complaint when Synergy filed the Motion on October 23, 2014.
In consideration of the above procedural history, the court finds that it would be
inappropriate to address the merits of the Motion. The court also questions the extent to
which Synergy can rely on Green’s Answer to the Amended Complaint in support of the
Motion. See Fruco Const. Co v. McClelland, 192 F.2d 241, 245 (8th Cir. 1951) (noting
that “[a]n abandoned or superseded pleading is out of the case, so far as admissions by rule
of pleading are concerned”). Accordingly, the court shall deny the Motion without
prejudice. Synergy may re-file a motion for summary judgment in accordance with the
applicable deadlines and instructions set forth in the Scheduling Order (docket no. 19) and
the Trial Management Order (docket no. 24).
In light of the foregoing, the Motion for Partial Summary Judgment Against Edward
R. Green (docket no. 38) is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
DATED this 5th day of February, 2015.

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