Johnston v. J&B Mechanical, LLC

Filing 26

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 8/15/2017 denying as moot 13 Motion to Dismiss. cc: Counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17CV-00051-JHM
JACK JOHNSTON, individually and on
behalf of those similarly situated

PLAINTIFF/COUNTER-DEFENDANT

V.
J&B MECHANICAL, LLC

DEFENDANT/COUNTERCLAIMANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by Plaintiff/Counter-Defendant, Jack
Johnston, to dismiss the counterclaim filed by Defendant/Counterclaimant, J&B Mechanical,
LLC [DN 13]. Fully briefed, this matter is ripe for decision.
Jack Johnston filed a civil action against J&B Mechanical alleging that J&B Mechanical
failed to pay the correct amount of overtime compensation to Johnston, and others similarly
situated, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.
(Complaint ¶1.) J&B Mechanical filed an answer denying that it failed to pay the correct amount
of overtime compensation. (Answer ¶¶ 17-27.) Contemporaneously with its answer, J&B
Mechanical filed a counterclaim against Johnston alleging that Johnston “engaged in a pattern
and practice of fraud, misrepresentation, disloyalty, and deceit” with respect to time he reported
working at or while traveling to or from out-of-town worksites. (Counterclaim ¶¶ 8-9.) On July
5, 2017, Johnston filed a motion to dismiss the counterclaim.

On July 26, 2017, J&B

Mechanical filed an amended counterclaim.
Fed. R. Civ. P. 15(a) “authorizes a party to amend his pleading once as a matter of course
within 21 days after serving it, or if the pleading is one to which a responsive pleading is
required, 21 days after service of the responsive pleading, or 21 days after service of a

dispositive motion under Rule 12, whichever is earlier.” Martinez v. Hiland, 2017 WL 939009,
at *1 (W.D. Ky. Mar. 9, 2017)(citing Fed. R. Civ. P. 15(a)(1)(A) and (B)). In the instant case,
Johnston filed a motion to dismiss the counterclaim against him on July 5, 2017. Twenty-one
days later, J&B Mechanical amended its counterclaim as a matter of course as permitted by Fed.
R. Civ. P. 15(a). Accordingly, because the filing of the amended counterclaim supersedes the
original counterclaim and because Johnston’s motion to dismiss is directed to the original
counterclaim, the motion to dismiss is now moot.
For these reasons, IT IS HEREBY ORDERED that the motion by Plaintiff/CounterDefendant, Jack Johnston, to dismiss the counterclaim filed by Defendant/Counterclaimant, J&B
Mechanical, LLC [DN 13] is DENIED AS MOOT.

cc: counsel of record
August 15, 2017

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