Mangiardi Brothers Trucking, Inc. v. Dewey Environmental, LLC et al

Filing 19

ORDER denying as moot 10 Motion to Dismiss for Failure to State a Claim; denying as moot 15 Motion to Dismiss. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Mangiardi Brothers
Trucking, Inc.
v.

Civil No. 12-cv-481-JD

Dewey Environmental, LLC,
et al.
O R D E R
Mangiardi Brothers Trucking, Inc. (“Mangiardi”) brought suit
against Dewey Environmental, LLC; Francis Harvey and Sons, Inc.;
Babcock and Wilcox Construction Co., Inc. (“Babcock”); and Berlin
Station, LLC (“Berlin”) alleging claims arising out of unpaid
invoices for Mangiardi’s hauling of hazardous waste from a
construction site.

Babcock and Berlin moved to dismiss the

complaint under Federal Rule of Civil Procedure 12(b)(6).
On February 25, 2013, fourteen days after Babcock filed its
motion to dismiss and four days after Berlin filed its motion to
dismiss, Mangiardi filed an amended complaint.1

The amended

complaint addressed some of the issues raised in the motions to
dismiss.
Under the Federal Rules of Civil Procedure, Mangiardi was
permitted to file its amended complaint as a matter of course

1

On the same day, Mangiardi filed an objection to Babcock’s
motion to dismiss.

within twenty-one days “after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.”
15(a)(1)(B).

Fed. R. Civ. P.

Once filed, the amended complaint superseded the

original, and “[t]hereafter the earlier complaint is a dead
letter and no longer performs any function in the case.”
Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008)
(internal citation and quotation marks omitted); Kolling v. Am.
Power Conversion Corp., 347 F.3d 11, 16 (1st Cir. 2003).
result, the pending motions to dismiss are moot.

As a

See, e.g.,

Applied Underwriters v. Combined Mgmt. Inc., 2011 WL 1467239, at
*1 n.2 (D. Me. Apr. 18, 2011).

Conclusion
Babcock’s motion to dismiss the original complaint (document
no. 10) and Berlin’s motion to dismiss the original complaint
(document no. 15) are denied as moot.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 11, 2013
cc:

David Himelfarb, Esquire
Rebecca S. Kane, Esquire
Thomas J. Pappas, Esquire
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