Drew v. NH Drug Task Force et al

Filing 29

ORDER re 23 Motion to Clarify 21 Order. The defendants' motion is granted to the extent the termination of the motion to dismiss as moot is explained in this order and is otherwise denied. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Willard Drew d/b/a
Kelsey’s at the Grant
v.

Civil No. 14-cv-462-JD
Opinion No. 2015 NH 063

State of New Hampshire,
NH Drug Task Force, et al.
O R D E R
The State of New Hamphsire, the New Hampshire Drug Task
Force (“NHDTF”), and former NHDTF commander, James Norris (“the
state defendants”) have filed a motion to clarify the court’s
order granting Willard Drew’s motion to amend the complaint.

In

support, the state defendants argue that their motion to dismiss
the original complaint should not have been terminated as moot
because the order did not address that part of the motion that
challenged claims against James Norris.

The state defendants ask

the court to address the status of the claims against Norris.

In

his objection to the motion, Drew asserts that the court
terminated the motion to dismiss as moot because the issue of
sovereign immunity could not be resolved on the current record.
Both the state defendants and Drew misunderstand the
procedural posture of the case.

The motion to dismiss was

terminated as moot because it challenged the original complaint,
not because all of the issues raised in the motion were resolved
or because the claims against Norris implicated sovereign
immunity.

Pursuant to the order granting the motion to amend,

the amended complaint superseded the original complaint, and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.

Zukerberg, 522 F.3d 82, 91 (1st Cir. 2008); accord Brait Builders
Corp. v. Mass., Div. of Capital Asset Mgmt., 644 F.3d 5, 9 (1st
Cir. 2011).

Because the amended complaint superseded the

original, the state defendants’ motion to dismiss was terminated
as moot.1

See In re Celexa & Lexapro Mktg. & Sales Practices

Litig., 751 F. Supp. 2d 277, 286 (D. Mass. 2010).

Therefore, any

challenges to claims against Norris must be raised in a motion
directed to the amended complaint under Federal Rules of Civil
Procedure 12(b), 12(c), or 56(a).

Conclusion
For the foregoing reasons, the defendants’ motion to clarify
(document no. 23) is granted to the extent the termination of the
motion to dismiss as moot is explained as stated above and is
otherwise denied.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 24, 2015
cc: Charles P. Bauer, Esq.
David H. Bownes, Esq.
Francis Charles Fredericks, Esq.
Richard W. Head, Esq.
Andrew B. Livernois, Esq.

1

If Drew had not filed the amended complaint, as he was
ordered to do, the original complaint would have remained in
effect. See Brait Builders, 644 F.3d at 9. That did not happen
in this case. Counsel should pay closer attention to the
procedural posture of a case.
2

3