Holmes v. Bank of America, N.A. et al

Filing 42

ORDER denying as moot 35 Motion to Dismiss for Failure to State a Claim, and 31 Motion to Dismiss. Signed by Magistrate Judge David Keesler on 10/31/2012. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:12-CV-487-MOC-DCK
DAVID HOLMES, HERTA S. THEBERGE
MARGUERITE K. POTTER, and the
MARGUERITE K. POTTER REVOCABLE
TRUST, individually and on behalf of those
similarly situated,

)
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)
)
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Plaintiffs,
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v.
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BANK OF AMERICA, N.A., ILLINOIS UNION )
INSURANCE COMPANY, SEATTLE
)
SPECIALITY INSURANCE SERVICES, INC., )
LLOYD’S UNDERWRITERS AT LONDON, )
and CERTAIN UNDERWRITERS AT
)
LLOYD’S LONDON,
)
)
Defendants.
)

ORDER

THIS MATTER IS BEFORE THE COURT on “Bank Of America’s Motion To Dismiss”
(Document No. 31) and “Defendant Illinois Union Insurance Company’s Motion To Dismiss”
(Document No. 35). These motions have been referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate. Having carefully considered
the motions, the record, and applicable authority, the undersigned will deny the motions as moot.
On October 30, 2012, with the consent of Defendants Bank Of America and Illinois Union
Insurance Company, and approval of the Court, Plaintiff’s “Rule 23 Class Action First Amended
Complaint And Jury Trial Demand” (Document No. 40) was filed. See (Document Nos. 38-39).
It is well settled that a timely-filed amended pleading supersedes the original pleading, and that
motions directed at superseded pleadings may be denied as moot. Young v. City of Mount Ranier,
238 F. 3d 567, 573 (4th Cir. 2001) (“The general rule .... is that an amended pleading supersedes the
original pleading, rendering the original pleading of no effect.”); see also, Colin v. Marconi

Commerce Systems Employees' Retirement Plan, 335 F.Supp.2d 590, 614 (M.D.N.C. 2004)
(“Earlier motions made by Defendants were filed prior to and have been rendered moot by
Plaintiffs’ filing of the Second Amended Complaint”); Turner v. Kight, 192 F.Supp. 2d 391, 397
(D.Md. 2002) (quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 1476 (2d ed. 1990) (“A pleading that has been amended ... supersedes the pleading
it modifies .... Once an amended pleading is interposed, the original pleading no longer performs
any function in the case.”); Brown v. Sikora and Associates, Inc., 311 Fed.Appx. 568, 572 (4th Cir.
Apr. 16, 2008); and Atlantic Skanska, Inc., 3:07-CV-266-FDW, 2007 WL 3224985 at *4 (W.D.N.C.
Oct. 30, 2007).
Based on the foregoing, the pending motions to dismiss will be denied as moot, without
prejudice to Defendants filing motions to dismiss the First Amended Complaint, if appropriate.
IT IS, THEREFORE, ORDERED that “Bank Of America’s Motion To Dismiss”
(Document No. 31) and “Defendant Illinois Union Insurance Company’s Motion To Dismiss”
(Document No. 35) are DENIED AS MOOT.
SO ORDERED.
Signed: October 31, 2012

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