HARLOW et al v. CHANREE CONSTRUCTION COMPANY, INC. et al
MEMORANDUM ORDE that Defendant Arch Insurance Company's Motion to Dismiss (ECF No. 13 ) is DENIED without prejudice. Signed by Judge Brian R. Martinotti on 2/17/2017. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALBERT J. HARLOW, JR., et al.,
Civil Action No. 16-8360-BRM-DEA
COMPANY, INC., et al.,
MARTINOTTI, DISTRICT JUDGE
This matter comes before the Court upon a Motion to Dismiss filed by defendant Arch
Insurance Company (“Arch”). (ECF No. 13.) In response to Arch’s motion, Plaintiffs filed an
Amended Complaint. (ECF No. 16.) Therefore, Arch’s Motion to Dismiss is moot and, for the
reasons discussed below, is DENIED without prejudice.
On November 8, 2016, Plaintiffs filed a two-count Complaint against defendants for breach
of contract and unjust enrichment in connection with a certain construction contract. (ECF No. 1.)
Arch moved to dismiss the Complaint on January 13, 2017. (ECF No. 13.) In response to Arch’s
motion, Plaintiffs filed an Amended Complaint on February 6, 2017. (ECF No. 16.) No reply to
the motion to dismiss was filed. 1
The motion was returnable on February 6, 2017.
“Rule 15(a)(1)(B) makes clear that ‘an amended complaint is a permissible response to a
Rule 12(b) motion.’” Harnish v. Widener Univ. School of Law, 2012 WL 2576353, at *2 (D.N.J.
July 3, 2012) (quoting Alliance Solutions, Inc. v. Quest Software, Inc., Civ. No. 11-2115, 2012
WL 692883 (D.Md. March 1, 2012)). Additionally, the Advisory Committee Notes to the 2009
Amendments to Rule 15(a) state that “[a] responsive amendment may avoid the need to decide the
motion or reduce the number of issues to be decided, and will expedite determination of issues that
otherwise might be raised seriatim.”
Where, as here, a motion to dismiss is directed at an original pleading, the motion is mooted
when an amended pleading is filed. See, e.g., Harnish, 2012 WL 2576353, at *3; Croker v. Applica
Consumer Prods., Inc., 2006 WL 626425, at *1 (D.N.J. Mar. 10, 2006) (“because Plaintiffs have
now amended their Complaint, Defendants’ motion to dismiss is moot and will be denied without
prejudice”) (collecting cases). This is because “[a]n amended complaint supersedes the original
version in providing the blueprint for the future course of a lawsuit.” Snyder v. Pascack Valley
Hospital, 202 F.3d 271, 276 (3d Cir. 2002). Plaintiffs’ Amended Complaint is the operative
pleading in this case and Arch’s motion to dismiss, directed at Plaintiffs’ original Complaint, is
moot and must be denied accordingly. See Cofield v. United States Dep’t of Justice, 2016 WL
4499103, at *1 (D.N.J. Aug. 25, 2016).
For the reasons set forth above, Defendant Arch Insurance Company’s Motion to Dismiss
(ECF No. 13) is DENIED without prejudice.
Date: February 17, 2017
/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
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