Family Spinal Health & Rehabilitation Center, Inc. v. Affordable Management & Consulting, Inc. et al

Filing 27

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the pending motion to dismiss the action with prejudice under Federal Rule of Civil Procedure 12(b)(6) [ECF No. 20 ] is DENIED without prejudice as moot. Signed by Magistrate Judge Patricia L. Cohen on 4/14/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FAMILY SPINAL HEALTH &
REHABILITATION CENTER, INC.
HEALTH GROUP d/b/a
PRECISION HEALTH GROUP,
Plaintiff,
vs.
AFFORDABLE MANAGEMENT &
CONSULTING, INC., et al.,
Defendants.

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Case no. 4:17cv00975 PLC

MEMORANDUM AND ORDER
The seven remaining Defendants named in the original “Class Action Junk-Fax Petition”1
filed on March 24, 2017, a motion to dismiss the action with prejudice under Federal Rule of
Civil Procedure 12(b)(6) [ECF No. 20]. In the original petition, Plaintiff alleged “some or all of
the Defendants or someone acting on their behalf” 2 sent a fax in violation of the Junk Fax
Prevention Act of 2005, 47 U.S.C. § 227. Defendants based their pending motion to dismiss, in
relevant part, on the fact that Plaintiff did not name as Defendants the only two entities identified
on the challenged fax: The AMC Free CE Academy and Sherman College. 3
Plaintiff filed a memorandum in opposition to the motion to dismiss and, on April 4,
2017, a “First Amended Class Action Complaint” [ECF No. 24]. In addition to naming as
Defendants the seven Defendants and ten John Doe Defendants identified in the original petition,
1

At Plaintiff’s request, the Court dismissed without prejudice the other Defendants, specifically, ten John
Doe Defendants, named in the original petition. See Pl’s Notice of Voluntary Dismissal, filed Mar. 20, 2017 [ECF
No. 13], and Order, filed Mar. 23, 2017 [ECF No. 16].
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Pl.’s Pet’n, ¶ 15 [ECF No. 1-1 at 5].

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See Defs.’ Mem. Supp. Mot. Dismiss [ECF No. 21].

Plaintiff’s first amended complaint adds four Defendants:

AMC Family, AMC Free CE

Academy, Inc., AMC Right Start, Inc., and Advanced Management for Chiropractors, Inc. Id.
With regard to pleadings that require a responsive pleading, Federal Rule of Civil
Procedure 15(a)(1)(B) allows a party “to amend its pleading once as a matter of course within”
twenty-one days after service of a motion under Rule 12(b), 12(e), or 12(f). Plaintiff filed its
first amended class action complaint within twenty-one days after service of the pending motion
to dismiss. “It is well-established that an amended complaint supercedes an original complaint
and renders the original complaint without legal effect.” In re Atlas Van Lines, Inc., 209 F.3d
1064, 1067 (8th Cir. 2000) (citing Washer v. Bullitt Cnty., 110 U.S. 558, 562 (1884)). Due to the
timely filing of Plaintiff’s first amended complaint, the pending motion to dismiss is moot
because it is seeking dismissal of the original petition, which is no longer before the Court. After
careful consideration,
IT IS HEREBY ORDERED that the pending motion to dismiss the action with
prejudice under Federal Rule of Civil Procedure 12(b)(6) [ECF No. 20] is DENIED without
prejudice as moot.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 14th day of April, 2017.

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