Winnett v. JPMorgan Chase Bank, N.A. et al

Filing 12

ORDER denying without prejudice as moot 5 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Janice M. Winnett
v.

Civil No. 13-cv-103-JD

JP Morgan Chase Bank, N.A.
and Federal National
Mortgage Association
O R D E R
Janice M. Winnett, who is proceeding pro se, filed a
petition in state court seeking a temporary restraining order and
an injunction to prevent JPMorgan Chase Bank, N.A. (“JPMorgan”)
and Federal National Mortgage Association (“FNMA”) from
conducting a foreclosure sale of her home.

In state court,

Winnett was granted an ex parte temporary restraining order on
February 25, 2013, to prevent a foreclosure sale of her home, and
the matter was scheduled for a hearing on March 7, 2013.

FNMA

and JPMorgan removed the action to this court on March 6, 2013.
FNMA moves to dismiss Winnett’s claims.1

In response,

Winnett filed an objection to the motion and a motion for leave
to file an amended complaint.

The motion for leave to amend has

been granted.

1

Although FNMA and JPMorgan are both defendants, only FNMA
moved to dismiss.

A properly filed amended complaint supersedes the original
complaint, and “[t]hereafter the earlier complaint is a dead
letter and no longer performs any function in the case.”
Connectu LLC v. Zuckerberg, 347 F.3d 82, 91 (1st Cir. 2008)
(internal citations and quotation marks omitted); Kolling v. Am.
Power Conversion Corp., 347 F.3d 11, 16 (1st Cir. 2003).

As a

result, the motion to dismiss the original complaint is moot.
See, e.g., Boston Granite Exchange, Inc. v. Greater Boston
Granite, LLC, 2012 WL 3776449, at *6 (D. Mass. Aug. 29, 2012);
Applied Underwriters v. Combine Mgmt. Inc., 2011 WL 1467239, at
*1 n.2 (D. Me. Apr. 18, 2011).
Because the original petition is superseded by the amended
complaint, the motion to dismiss the petition is moot.

The

disposition of the motion to dismiss is without prejudice as to
any motions that may be filed to dismiss the amended complaint.

2

Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document no. 5) is denied, without prejudice, as moot.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 9, 2013
cc:

Peter G. Callaghan, Esquire
Janice M. Winnett, pro se

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