Brown v. Anson County et al

Filing 21

ORDER denying without prejudice as moot 6 Motion to Dismiss. Signed by District Judge Max O. Cogburn, Jr on 5/24/11. (com)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:10cv565
FLOYD LEE BROWN, by and through
his Guardian Ad Litem, Anthony
Giordano,
Plaintiff,
Vs.
ANSON COUNTY; ROBERT LUTHER
POPLIN, JR., in his individual capacity;
SHERIFF TOMMY ALLEN, in his
individual and official capacities;
SHERIFF JAMES SELLERS, in his
individual and official capacities; JOHN
and JANE DOES 1-10, in their individual
capacities; and RICHARD and
ROBERTA ROES 1-10, in their individual
capacities,
Defendants.
_______________________________

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ORDER

THIS MATTER is before the court on Defendants Anson County’s, Robert Poplin,
Jr.’s, Tommy Allen’s, and James Sellers’s Partial Motion to Dismiss (#6). After such motion
was filed on December 15, 2010, plaintiff filed its Amended Complaint(#18) on May 5,
2011. By amendment, the Partial Motion to Dismiss (#6) is moot as a matter of law. Young
v. City of Mount Ranier, 238 F. 3d 567, 573 (4th Cir. 2001) (“[t]he general rule ...is that an
amended pleading supersedes the original pleading, rendering the original pleading of no
effect); Taylor v. Abate, 1995 WL 362488, *2 (E.D.N.Y.1995)1 (“Defendants' motion to
dismiss is addressed solely to the original complaint···· Consequently, upon the filing of the
amended complaint, their motion is mooted and, therefore, denied.”); In re Colonial Ltd.

Due to the limits of ECF, copies of unpublished decisions cited in this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.
1

Partnership Litig., 854 F.Supp. 64, 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 Management Co., Inc., 1989 WL 161431, at *1 n. 1 (D.Kan.1989)
(holding that “motion to dismiss ··· became moot when plaintiff filed an amended
complaint”); Gresham v. Waffle House, Inc., 586 F.Supp. 1442, 1444 n. 1 (N.D.Ga.1984)
(same). The motion will be denied without prejudice as moot.

ORDER
IT IS, THEREFORE, ORDERED that the moving defendants’ Partial Motion to
Dismiss (#6) is DENIED without prejudice as moot.

Signed: May 24, 2011