Foster v. Fisher et al

Filing 32

ORDER granting Plaintiff's 24 Motion for Leave to Amend; administratively denying as moot without prejudice Defendant 25 "Jack Van Duncan's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted. Signed by Magistrate Judge David S. Cayer on 3/11/15. (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL ACTION NO. 1:14-CV-00292-MR-DSC
JENNIFER NICOLE FOSTER,
Plaintiff,
v.
AMANDA FISHER, et al.,

Defendants.

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ORDER

THIS MATTER is before the Court on Plaintiff’s “Motion for Leave to Amend”
(document # 24) filed January 30, 2015 and “Jack Van Duncan’s Motion to Dismiss for Failure
to State a Claim Upon Which Relief Can Be Granted” (document #25) filed February 4, 2015.
This matter was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1).
Rule 15 of the Federal Rules of Civil Procedure governs amendments to pleadings. Rule
15(a)(1) grants a party the right to “amend its pleading once as a matter of course,” if done
within twenty-one (21) days after serving the pleading, Fed. R. Civ. P. 15(a)(1)(A), or, “if the
pleading is one to which a responsive pleading is required,” a party may amend once as a matter
of course, provided that it does so within “21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P.
15(a)(1)(B). Rule 15(a)(2) provides that “[i]n all other cases, a party may amend its pleading

only with the opposing party’s consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The Rule
further provides that leave to amend shall be freely given “when justice so requires.” Id.
After conferring with the chambers of the Honorable Martin Reidinger, recognizing that
no responses in opposition to Plaintiff’s Motion to Amend were filed, and considering Plaintiff’s
pro se status, Plaintiff’s “Motion for Leave to Amend” (document # 24) will be granted.
The Court reminds Plaintiff of her obligation under Fed. R. Civ. P. 8(a) to file an
amended complaint which contains a “short and plain statement” of her claims, as well as her
obligation under Fed. R. Civ. P. Rule 8(d) to provide a “simple, concise, and direct” pleading.
The purpose of the complaint is to “give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “At its core, [Rule 8's] requirement is
the most natural embodiment of the ‘notice pleading’ standard established by the Rules.” Knox
v. Davis, No. 5:11–CT–3266–F, 2012 WL 2116501, at * 2 (E.D.N.C. June 11, 2012) (citing
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.2009)). “Rule 8 is not merely a toothless
preference, guideline, or ideal; it establishes a fundamental requirement and is regularly enforced
by the court.” Id. Its violation is grounds for dismissal of a complaint. See, e.g., Sewarz v. Long,
407 F. App'x 718, 718–19 (4th Cir. 2011); North Carolina v. McGuirt, 114 F. App'x 555, 558
(4th Cir. 2004).
The Court further warns Plaintiff that her failure to comply with the Court’s Orders, the
Local Rules and the Federal Rules of Civil Procedure may result in DISMISSAL OF HER
CLAIMS WITH PREJUDICE.

It is well settled that an amended pleading supersedes the original pleading, and that
motions directed at superseded pleadings are to be denied as moot. Young v. City of Mount
Ranier, 238 F. 3d 567, 573 (4th Cir. 2001) (amended pleading renders original pleading of no
effect); Turner v. Kight, 192 F. Supp. 2d 391, 397 (D. Md. 2002) (denying as moot motion to
dismiss original complaint on grounds that amended complaint superseded original complaint).
Consequently, the Court orders that “Jack Van Duncan’s Motion to Dismiss…” (document #25),
be administratively DENIED as moot without prejudice.
IT IS HEREBY ORDERED that:
1.

“Plaintiff’s “Motion for Leave to Amend” (document # 24) is GRANTED. The
Clerk is directed to docket attachment #1 to Plaintiff’s Motion as the Second
Amended Complaint in this case.

2.

“Jack Van Duncan’s Motion to Dismiss for Failure to State a Claim Upon Which
Relief Can Be Granted” (document #25) is administratively DENIED as moot
without prejudice.

3.

The Clerk is directed to send copies of this Order to the pro se Plaintiff, counsel
for Defendants; and to the Honorable Martin Reidinger.

SO ORDERED.

Signed: March 11, 2015