Synovus Bank v. Karp et al

Filing 13

ORDER denying without prejudice as moot 10 Motion to Dismiss. Signed by Magistrate Judge Dennis Howell on 11/3/10. (siw)

- D L H Synovus Bank v. Karp et al

D o c . 13

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 1 7 2 S Y N O V U S BANK, ) ) P l a i n t if f , ) ) V s. ) ) J A M E S G. KARP; G. DANIEL SIEGEL;) a n d THE KARP FAMILY LIMITED ) P A R T N E R S H IP , ) ) D efen d a n ts. ) _______________________________ )

ORDER

T H IS MATTER is before the court on plaintiff's Motion to Dismiss. In such m o tio n , filed October 14, 2010, plaintiff seeks dismissal of defendants' counterclaims. O n November 1, 2010, within the time provided under Rule 15(a)(1)(B), defendants filed their Amended Counterclaim. Through such amendment, the Motion to Dismiss is moot as a matter of law and will not be the subject of a separate recommendation. T aylo r v. Abate, 1995 WL 362488, *2 (E.D.N.Y.1995) 1 ("Defendants' motion to d ism iss is addressed solely to the original complaint···· Consequently, upon the filing o f the amended complaint, their motion is mooted and, therefore, denied."); In re

Due to the limits of ECF, copies of unpublished decisions cited in this O r d e r are incorporated into the court record through reference to the Westlaw c ita tio n .
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C o lo n ial Ltd. Partnership Litig., 854 F.Supp. 64, 80 (D.Conn.1994) (noting where "a p la in tif f amends its complaint while a motion to dismiss is pending" the court may "d e n y[ ] the motion as moot"); Rathke v. HCA Management Co., Inc., 1989 WL 1 6 1 4 3 1 , 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). ORDER IT IS, THEREFORE, ORDERED that plaintiff's Motion to Dismiss (#10) is D E N IE D without prejudice as moot.

Signed: November 3, 2010

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