Hudson v. Dr. Michael J. O'Connell's Pain Center

Filing 8

ORDER denying without prejudice 4 Motion to Dismiss; granting 6 Motion for Leave to File Amended Complaint. So Ordered by Judge Joseph A. DiClerico, Jr. (dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Kaitlin Hudson
v.

Civil No. 11-cv-278-JD

Dr. Michael J. O’Connell’s Pain
Center and Dr. Michael J. O’Connell
O R D E R
Kaitlin Hudson filed suit in state court, alleging claims
against her former employer.

The defendants removed the case to

this court and filed a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6).

In response, Hudson objected to the

motion to dismiss and filed a motion for leave to file an amended
complaint.
A party may amend her pleadings once as a matter of course
within twenty-one days after the defendant files a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Fed. R. Civ. P. 15(a)(1)(B).

As Rule 15(a)(1)9B) appears to

apply to Hudson’s amended complaint, she need not have moved for
leave to file.

Therefore, Hudson’s motion is granted.

Once an amended complaint is filed, as has happened here,
the amended complaint supersedes the original, and “[t]hereafter,
the earlier complaint is a dead letter and no longer performs any
function in the case.”

Connectu LLC v. Zukerberg, 522 F.3d 82,

91 (1st Cir. 2008); accord Brait Builders Corp. v. Massachusetts,
--- F.3d ---, 2011 WL 1631952, at *3 (1st Cir. May 2, 2011).
Because the amended complaint superseded the original, the
defendants’ motion to dismiss does not address the operative
pleading.

As a result, the court will not consider the

defendants’ pending motion to dismiss.

Conclusion
For the foregoing reasons, the plaintiff’s motion to amend
(document no. 6) is granted.

The defendants’ motion to dismiss

(document no. 4) is denied without prejudice to filing another
dispositive motion addressing the amended complaint.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 19, 2011
cc:

William E. Christie, Esquire
John P. Sherman, Esquire

2