Rutherford County v. Bond Safeguard Insurance Company

Filing 38

ORDER denying 33 Motion to Dismiss without prejudice as moot and plaintiff-intervenor Response and Objection (#37) is STRICKEN. Signed by Magistrate Judge Dennis Howell on July 13, 2010. (jhg)

R u t h e r f o r d County v. Bond Safeguard Insurance Company

D o c . 38

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA A S H E V IL L E DIVISION 1 :0 9 cv 2 9 2 R U T H E R F O R D COUNTY, P l a i n t if f , G R E Y R O C K COMMUNITY A S S O C IA T IO N , INC., P l a i n t if f - I n t e r v e n o r , V s. B O N D SAFEGUARD INSURANCE CO., D e fe n d a n t . _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER

T H IS MATTER is before the court on defendant's Motion to Dismiss C o m p lain t of Intervenor-Plaintiff (#33), which was filed on June 23, 2010. On July 1 2 6 , 2010, plaintiff-intervenor filed its Amended Complaint. See Docket Entry #36. T h e same day, plaintiff-intervenor filed their 25-page Response and Objection to M o tio n to Dismiss (#37). By amending their Complaint in intervention within 21 days o f defendant's Motion to Dismiss, see Fed.R.Civ.P. 15(a), the Motion to Dismiss b ecam e moot as a matter of law. Taylor v. Abate, 1995 WL 362488, *2

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Dockets.Justia.com

( E .D .N .Y .1 9 9 5 )1 ("Defendants' motion to dismiss is addressed solely to the original co m p lain t.... Consequently, upon the filing of the amended complaint, their motion is mooted and, therefore, denied."); In re Colonial Ltd. Partnership Litig., 854 F.Supp. 6 4 , 80 (D.Conn.1994) (noting where "a plaintiff amends its complaint while a motion to dismiss is pending" the court may "deny[ ] the motion as moot"); Rathke v. HCA M a n a g e m e n t Co., Inc., 1989 WL 161431, at *1 n. 1 (D.Kan.1989) (holding that "m o tio n to dismiss ··· became moot when plaintiff filed an amended complaint"); G r es h a m v. Waffle House, Inc., 586 F.Supp. 1442, 1444 n. 1 (N.D.Ga.1984) (same). T h e plaintiff-intervenor's 25-page response was, therefore, not required. ORDER IT IS, THEREFORE, ORDERED that defendant's Motion to Dismiss (#33) is DENIED without prejudice as moot and plaintiff-intervenor Response and O b jectio n (#37) is STRICKEN.

Signed: July 13, 2010

Due to the limits of ECF, copies of unpublished decisions cited in this Order are incorporated into the court record through reference to the Westlaw citation. -2-

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