Wilson v. Port City Air, Inc. et al

Filing 16

ORDER terminating without prejudice as moot 9 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

George Wilson
v.

Civil No. 13-cv-129-JD

Port City Air, Inc., et al.
O R D E R
George Wilson brought suit against his former employer, Port
City Air, Inc.; its chief executive officer, Ned Denney; its
president, Robert Jesurum, and another employee.

The complaint

alleges discrimination and retaliation claims under RSA 354-A,
wrongful discharge, and unlawful employment practices in
violation of 42 U.S.C. § 2000e, et seq., (“Title Seven”).

On

April 5, 2013, defendants Ned Denney and Robert Jesurum moved to
dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6),
the claims against them -- Counts XII through XV against Jesurum,
and Counts XVI through XIX against Denney.

Wilson filed both an

objection to the motion and an amended complaint on April 19,
2013, that includes additional allegations against Jesurum and
Denney.
An amended complaint may be filed once as a matter of course
within twenty-one days after service of a motion under Rule
12(b).

Fed. R. Civ. P. 15(a)(1).

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).
complaint is moot.

As a result, the motion to dismiss the original
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).

Conclusion
For the foregoing reasons, the defendants’ motion to dismiss
(document no. 9) is terminated, without prejudice, as moot.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
April 23, 2013
cc:

Matthew T. Broadhead, Esquire
Jacob JohnBrian Marvelley, Esquire
Paul McEachern, Esquire

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