Celgard, LLC v. LG Chem, Ltd. et al

Filing 204

ORDER denying 71 Motion To Transfer Venue To The Eastern District Of Michigan; granting 180 Motion For Leave To File Amended Complaint; denying 30 Motion to Dismiss. Signed by Magistrate Judge David Keesler on 08/25/2014. (jlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:14-CV-043-MOC-DCK
CELGARD, LLC,
Plaintiff,
v.

LG CHEM AMERICA, INC., and
LG CHEM, LTD.,
Defendants.

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ORDER AND MEMORANDUM
AND RECOMMENDATION

THIS MATTER IS BEFORE THE COURT on Plaintiff’s “Motion For Leave To File
Amended Complaint” (Document No. 180). This motion has been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate. Having
carefully considered the motion, the record, and, applicable authority, the undersigned will grant
the motion.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 15 applies to the amendment of pleadings and allows a
party to amend once as a matter of course within 21 days after serving, or “if the pleading is one
to which a responsive pleading is required, 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). Rule 15 further provides:
(2) Other Amendments. In all other cases, a party may amend its
pleading only with the opposing party's written consent or the

court's leave. The court should freely give leave when justice so
requires.
Fed.R.Civ.P. 15(a)(2).
Under Rule 15, a “motion to amend should be denied only where it would be prejudicial,
there has been bad faith, or the amendment would be futile.” Nourison Rug Corporation v.
Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77
(4th Cir. 2001); see also, Foman v. Davis, 371 U.S. 178, 182 (1962). However, “the grant or
denial of an opportunity to amend is within the discretion of the District Court.” Pittston Co. v.
U.S., 199 F.3d 694, 705 (4th Cir. 1999) (quoting Foman, 371 U.S. at 182).
DISCUSSION
To date, there has been no certification of initial attorney’s conference, no case
management order, and no answer filed in this matter.

The Court has permitted limited

discovery between the parties regarding jurisdiction. (Document Nos. 139, 179). In fact, under
the current schedule, the pending motions to dismiss and transfer (Document Nos. 30 and 71)
will not be fully “ripe” for adjudication until jurisdictional discovery is completed August 29,
2014, and supplemental briefs are filed on or about September 11 and 18, 2014. Id. Moreover,
the undersigned is not persuaded that there is sufficient evidence of prejudice, bad faith, or
futility to outweigh the policy favoring granting leave to amend. At worst, the pending motion to
amend was filed prematurely, since the jurisdictional discovery Plaintiff had requested is
unlikely to have been completed by August 5, 2014, the date the motion was filed. After careful
consideration of the record and the motions, the undersigned finds that Plaintiff's motion to
amend should be granted.
Under the circumstances, the Court will respectfully direct Plaintiff to file its amended
pleading after the completion of jurisdictional discovery. Because the undersigned will order
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Plaintiff to file an Amended Complaint which supersedes the original Complaint, the
undersigned will respectfully recommend that “The LG Chem Defendants’ Motion To Dismiss
Plaintiff’s Complaint For Lack Of Personal Jurisdiction” (Document No. 30) and “The LG Chem
Defendants’ Alternative Motion To Transfer Venue To The Eastern District Of Michigan”
(Document No. 71) be denied as moot. This recommendation is without prejudice to Defendants
filing renewed motions to dismiss and/or transfer, if appropriate.
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. v.
City of Charlotte, 3:07-CV-266-FDW, 2007 WL 3224985 at *4 (W.D.N.C. Oct. 30, 2007).
The parties shall complete jurisdictional discovery as previously ordered, by August
29, 2014, but are excused from filing supplemental briefs. (Document No. 139). However,
the parties shall incorporate the results of their jurisdictional discovery in the Amended
Complaint, as well as in the Answer and/or other response(s) to the Amended Complaint.

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CONCLUSION
IT IS, THEREFORE, ORDERED that Plaintiff’s “Motion For Leave To File Amended
Complaint” (Document No. 180) is GRANTED. Plaintiff shall file an Amended Complaint
after the close of jurisdictional discovery, but on or before September 5, 2014.1
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
“The LG Chem Defendants’ Motion To Dismiss Plaintiff’s Complaint For Lack Of Personal
Jurisdiction” (Document No. 30) and “The LG Chem Defendants’ Alternative Motion To
Transfer Venue To The Eastern District Of Michigan” (Document No. 71) be DENIED AS
MOOT.
TIME FOR OBJECTIONS
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of
the Federal Rules of Civil Procedure, written objections to the proposed findings of fact,
conclusions of law, and recommendation contained herein may be filed within fourteen (14)
days of service of same. Responses to objections may be filed within fourteen (14) days after
service of the objections. Fed.R.Civ.P. 72(b)(2). Failure to file objections to this Memorandum
and Recommendation with the District Court constitutes a waiver of the right to de novo review
by the District Court.

Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005).

Moreover, failure to file timely objections will preclude the parties from raising such objections
on appeal. Diamond, 416 F.3d at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003);
Snyder v. Ridenhour, 889 F.2d 1363, 1365 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 14748 (1985), reh’g denied, 474 U.S. 1111 (1986).
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The Administrative Procedures Governing Filing and Service by Electronic Means, revised January 1,
2012, at Part II, Section A, Paragraph 8, provide that: “If filing a document requires leave of the Court,
such as an amended complaint, the attorney shall attach the proposed document as an exhibit to the
motion according to the procedures in IV. If the Court grants the motion, the filer will be responsible for
electronically filing the document on the case docket.”
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SO ORDERED AND RECOMMENDED.

Signed: August 25, 2014

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