SunTrust Bank v. 890 Hendersonville Road, LLC et al

Filing 17

ORDER denying as moot 14 Motion to Dismiss and Defendants Brumits and Owens Memorandum in Response is STRICKEN. Signed by Magistrate Judge Dennis Howell on 07/07/2010. (thh)

S u n T r u s t Bank v. 890 Hendersonville Road, LLC et al

D o c . 17

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 :1 0 cv 5 0 S U N T R U S T BANK, ) ) P l a i n t if f , ) ) V s. ) ) 8 9 0 HENDERSONVILLE ROAD, LLC; ) J O E C. BRUMIT, II; CHARLES D. ) O W E N , III; and GREGORY A. EDNEY, ) ) D efen d a n ts. ) _______________________________ )

ORDER

T H IS MATTER is before the court on plaintiff's Motion to Dismiss (#14) the co u n terclaim s asserted by defendants 890 Hendersonville Road, LLC, Joe C. Brumit, I I, and Charles D. Owen, III. On July 6, 2010, Defendants Brumit and Owen filed A m en d ed Counterclaims (#15). The same day, Defendants Brumit and Owen also filed their Memorandum in Response to Plaintiff's Motion to Dismiss Counterclaims (# 1 6 ). By amending their counterclaims within 21 days of plaintiff's Motion to D ism iss, the Motion to Dismiss as to the amending defendants became moot as a m atter of law. Taylor v. Abate, 1995 WL 362488, *2 (E.D.N.Y.1995)1 ("Defendants' m o tio n to dismiss is addressed solely to the original complaint.... Consequently, upon th e filing of the amended complaint, their motion is mooted and, therefore, denied."); In re Colonial Ltd. Partnership Litig., 854 F.Supp. 64, 80 (D.Conn.1994) (noting

Due to the limits of ECF, copies of unpublished decisions cited in this O r d e r are incorporated into the court record through reference to the Westlaw c ita tio n .
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w h ere "a plaintiff amends its complaint while a motion to dismiss is pending" the co u rt may "deny[ ] the motion as moot"); Rathke v. HCA Management Co., Inc., 1989 W L 161431, at *1 n. 1 (D.Kan.1989) (holding that "motion to dismiss ··· became moot w h en plaintiff filed an amended complaint"); Gresham v. Waffle House, Inc., 586 F .S u p p . 1442, 1444 n. 1 (N.D.Ga.1984) (same). Defendants Brumit's and Owen's resp o n se was, therefore, not required. S u ch amendment leaves plaintiff's Motion to Dismiss open, however, as to D e fe n d a n t 890 Hendersonville Road. While plaintiff's motion specifically states that p lain tiff seeks dismissal of counterclaims asserted by Defendant 890 Hendersonville R o ad (see Docket Entry #14, at 1), close review of the counterclaims asserted by d e f en d a n ts in their Answer reveals that only Defendants Brumit and Owen co u n terclaim ed against plaintiff. See Docket Entry # 9, at pp. 6, 9, & 10.2

ORDER IT IS, THEREFORE, ORDERED that plaintiff's Motion to Dismiss (#14) is D E N IE D as moot and Defendants Brumit's and Owen's Memorandum in Response is STRICKEN.
While it is clear in the First Counterclaim (as asserted in the original Counterclaims) that Defendants Brumit and Owen are the only counterclaimants, such clarity is muddied in the following counterclaims. While incorporating the preceding paragraphs of the First Counterclaim, the Second and Third counterclaims switch nomination of the counterclaimants from "Defendants Brumit and Owen" to "these answering defendants," giving one pause as to whether Defendant 890 Hendersonville Road is a counterclaimant as it was an "answering defendant." The substance of the Second and Third Counterclaims only reference damages to Defendants Brumit and Owen, making it clear that Defendant 890 Hendersonville Road is not, in fact, a counterclaimant. -22

Signed: July 7, 2010

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