Aguirre v. Atrium Medical Corporation et al

Filing 24

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson DENYING AS MOOT 15 Defendant Atrium Medical Corporation's Motion to Dismiss for Failure to State a Claim. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
JESUITA AGUIRRE,
Plaintiff,
v.

No. Civ. 18-00153 WJ/GBW

ATRIUM MEDICAL CORPORATION,
GETINGE GROUP, GETINGS USA, INC.,
MAQUET CARDIOVASCULAR, LLC.
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO DISMISS AS MOOT
THIS MATTER comes before the Court sua sponte upon a Motion to Dismiss for Failure
to State a Claim filed by Defendant Atrium on August 3, 2018 (Doc. 15).
On September 4, 2018, Plaintiff filed a motion to amend her complaint as of right, which
the Court granted. See Docs 20 & 23. Because the amended complaint supercedes the original
complaint, Defendant’s motion to dismiss is now moot, as Plaintiff notes in her response to the
motion to dismiss. See Doc. 21 at 2.1 See, e.g., Strich v. United States, No. 09-cv-01913- REBKLM, 2010 WL 14826, at *1 (D. Colo.) Jan. 11, 2010) (citations omitted) (“The filing of an
amended complaint moots a motion to dismiss directed at the complaint that is supplanted and
superseded.”); AJB Props., Ltd. v. Zarda Bar-B-Q of Lenexa, LLC, No. 09-2021-JWL, 2009 WL
1140185, at *1 (D. Kan. April 28, 2009) (finding that amended complaint superseded original

1

Plaintiff filed the response to the motion to dismiss the same day as she filed her motion to amend the complaint,
more than the two weeks allowed by this Court’s local rules. See D.N.M.LR-Civ. 7.4. The Court assumes that the
parties agreed to an extension of time for Plaintiff to respond.

complaint and accordingly, defendant’s motion to dismiss the original complaint is denied as
moot”); Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006) (noting that
defendants’ motions to dismiss are “technically moot because they are directed at a
pleading that is no longer operative”).
Defendant has not replied to this argument, and so the Court will assume that Defendant
takes no position on whether its motion to dismiss has become moot upon Plaintiff’s amendment
of the complaint. The Court therefore DENIES Defendant’s Motion to Dismiss (Doc. 15) as
MOOT.
IT IS SO ORDERED.

_________________________________________
CHIEF UNITED STATES DISTRICT JUDGE

2